My Lord: Mr. Fenton having, on the receipt of your lordship’s circular dispatch, of the 16th ultimo, applied to the Bavarian government for the information desired by your lordship, for the use of the Naturalization Commission, on the disabilities to which aliens residing in Bavaria might be subjected, I yesterday evening received in reply from Prince Hohenlohe the note of the 5th instant and the memorandum of which I have the honor to inclose herewith copies and translations.[Page 1381]
This memorandum contains such full particulars on the legal position of foreigners in Bavaria that I have no occasion to add any further explanations on the subject.
Your lordship will perceive that Prince Hohenlohe remarks in his note that as the principles of the Bavarian poor-law and communal legislation are at present undergoing a legislative revision, it had been necessary to omit treating, in the memorandum, of the position of foreigners with respect to these two institutions.
I have, &c.,
The Lord Stanley, M. P.,
&c., &c., &c.
, K. C. B.,
&c., &c., &c.
the legal position of foreigners in bavaria.
The general principle rules that a foreigner enjoys equal rights with a native of the country, to which the only exception made is where such exception is legally enacted, or when a royal ordinance applies the principle of retaliation on account of disadvantages to which Bavarian subjects are liable abroad, as compared to persons belonging to the country which imposes the disadvantages.
The legal disabilities relate to:
1.—The domain of civil law and civil proceedings.
While a preference to native creditors or debtors is excluded by § 34 of the code of priority of the 1st of June, 1822, in cases of bankruptcy, paragraph 8 I of the code of procedure of the 22d of July, 1819, leaves it optional to the defendant, being a native of the country, to require of the foreign plaintiff, when he does not possess any estate situated in Bavaria, the deposit of a security for the future payment of the costs of the lawsuit. With regard to foreigners, and as is the case generally when there is the danger of loss, the judicial code affords the security of arrest, which likewise then determines the forum arresti. In this respect, likewise, international treaties, as, for example, with Würtemberg, have introduced milder enactments in favor of the subjects of the respective states. Moreover, article 76 of the introductory law to the German commercial code places the citizens of the states of the former German Confederation on an equality with natives of the country. Foreigners are likewise capable of acquiring real property on the condition of reciprocity.
II.—Penal law and penal procedure.
Foreigners are subject to the Bavarian penal jurisdiction when they have either committed a penal act in the country or when they shall have been guilty beyond the Bavarian frontiers of such an act against the king, the Bavarian state, or a person belonging to it.—A, 12, penal code.
If a foreigner has been condemned in Bavaria on account of a crime, he will be expelled from the country after having undergone his punishment; the same takes place with regard to convictions on account of offenses or contraventions in the cases determined by law.—Art. 43, loc. cit.
In actions for libel the demand of a security for the costs from a foreign plaintiff is optional, according to article 61, section 3, of the introductory law to the penal code.
In respect to foreigners, concerning whom well-founded doubts may be entertained of their appearing before the court if summoned to do so, preliminary arrest is moreover admissible, according to article 41, section 3, loc cit., on account of any penal act.[Page 1382]
III.—In the domain of the constitutional and administrative law the foreigner is excluded.
1. As not being in possession of the Bavarian naturalization, (indigenat,) from all civil rights.—§ 9 of the first edict of the constitution.
If he acquires the naturalization, it is only after the expiration of six years that he enters into the enjoyment of the above-mentioned rights. The foreigner, as such, is therefore excluded from the active and passive electoral franchise for communal, district, provincial, and parliamentary elections, from admission into state offices and the possession of benefices; he cannot be elected as a juryman, nor as a member of a committee of taxation. Crown and superior court offices, superior military posts, are closed to the foreigner, although it is not the possession of the fullest rights of citizenship, but merely that of naturalization, which gives a claim to many of the above-named rights.
2. The trade law of the 18th of January, 1868, only reserves in article 2 the sanction of the state for foreign joint-stock companies, branch establishments, and other companies established for trading purposes, inasmuch as the provisions of state treaties do not determine otherwise. Even § 21 of the ordinance relative to the hawking trade, of the 28th of April of last year, places foreigners on a complete equality with the natives of the country, excepting in cases of retaliation. Foreign medical men receive from the provincial governments or from the ministry of state for the interior the permission temporarily to practice in the country. Medical men who only sojourn temporarily in Bavaria, and who are entitled to practice in their own country only, have the right of giving consultations, not however that of ordinary practice.—§ 15, ordinance of the 29th of January, 1865, concerning the medical art.
3. Article 10, section 2, of the military law of the 30th of January of this year, prohibits the permanent residence in the kingdom, as foreigners, of those emigrants who have not yet attained their 32d year.
4. Foreigners are permitted to reside in any commune of the kingdom when they can bring sufficient proof of their nationality and place of legal settlement, and when there is no legal impediment to their residence. The expulsion of a foreigner from a commune is only admissible on the same legal grounds (article 45 of the law of settlement of the 16th of April of this year) in virtue of which the expulsion of a Bavarian subject not having a right of settlement in the locality could likewise take place. It is only the ministry of the interior which, except in the aforesaid cases, is entitled to expel a foreigner from the country on grounds connected with the internal or external security of the state.
5. Only the person who possesses the Bavarian naturalization can acquire a right of settlement in a commune of the kingdom; foreigners are consequently excluded from it.—Article 1–10, loc. cit.
A foreign woman, however, who marries a Bavarian acquires thereby the naturalization (indigenat) and the settlement of the husband.—§ 3 of annex 1 to the constitution and article 3 of the law of settlement.
6. Foreigners can likewise marry in Bavaria when they can prove to the respective district police authorities that, according to the laws in force in the country of the husband, the contracting of this marriage is admissible, and has the same effects as if it had taken place in that country.
If the future wife is a foreigner she has to produce a permission of emigration, if such a permission is necessary according to the laws of her own country for emigration. —Article 34, &c., and article 39 of the law of settlement.
7. Foreigners, independently of cases of retaliation, and with the sole exception of those who carry on a wandering trade, or who belong to the class of journeymen, servants, and trade assistants, require no permit for traveling.—§ 2 of the royal ordinance of the 9th of December, 1865, respecting passports.