No. 265.
Mr. Bancroft to Mr. Fish.

No. 600.]

Sir: The ministry of the interior is becoming every day more strict in searching out those who evade their military duty in Germany by passing time enough in America to become nominally citizens of the United States, with the intent to use that right of citizenship only as a plea to escape military duty in the country of their birth and domicile. When the treaties were negotiated with South Germany, Bavaria insisted on an article that its citizens, if they became citizens of the United States, though they may visit Bavaria on business, cannot establish themselves permanently there, until the years of liability to military duty shall have come to an end. This provision I recommended at the time to our Government for adoption, and it received the approval of the President and Senate of that day. The result has been excellent; the treaty has been carried out in Bavaria without the slightest difficulty or [Page 447] complaint on either side during the years that have passed since its ratification.

The Prussian government is now inclined to gain the same security for itself, against fraudulent naturalization, by applying the fourth article of the naturalization treaty of North Germany to cases of that kind.

To a young man from the Rhenish Provinces who applied to me for protection, with a frank avowal that his only object in retaining his American citizenship was to escape military duty here, but for which he should have returned to his allegiance to Prussia, I replied that our Government could not allow its citizenship to be thus fraudulently used; and I limited my offer of protection to procuring for him the free right of returning to the United States.

In another case from Alsace there seemed every appearance that our citizenship had been gained with no other view than to avoid duties of citizenship in Europe, and I therefore in like manner limited my offer of interference.

A third case has come up, where certainly the appearances implied that our citizen-papers were abused for the simple purpose of escaping military duty here. But this time the government threatened to seize the young man and put him into the army. To this I have demurred. It seems to me that we can never consent to put such a construction on the fourth article as this procedure would imply. I have had repeated conversations with Mr. President Delbrück, and with Mr. Von Bülow, the secretary of state, and have taken the ground that the article of the treaty cannot be so interpreted. The last half of the fourth article is permissive, not mandatory. The words are: “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 United States secure to themselves by the article the right of avoiding complications with the German government in cases where it is plain that the naturalized citizen has no just claim to its interference; and in like manner, the German government has an acknowledgment of its right to look into the circumstances of the case where every appearance implies that the naturalization is fraudulent. I have therefore insisted that the naturalized American, who has the appearance of having obtained naturalization solely to escape military service, should have a right to establish his sincerity by electing to take up his residence in the United States.

The instance of Mr. Mentheim Cohn, respecting whom I annex a translation of a letter from Mr. Von Bülow, is the only one in which the claim has been put forward of a right to summon at once to military duty a person who gives every appearance of having been insincere in his naturalization. Both the minister for foreign affairs and Mr. Delbrück appeared to me to accord with me. My interpretation is warranted by the constant practice since the treaty was formed, and by the interpretation of the fourth article in the protocols of every one of the four southern states. I may say, in the very case of Mr. Cohn, it has received the approbation of the government. I gave him a passport for the United States, and, as far as I know, he has not been further interfered with.

In this manner I hope that the seeming discrepancy of opinion is reconciled, and that my successor, on entering on the duties of his office, will find no question left for discussion between the legation and the German government.

I remain, &c.,

[Page 448]

Mr. von Bülow to Mr. Bancroft.

In pursuance of the note of the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. Bancroft, under date of the 28th ultimo, the undersigned hastened to take the necessary steps to cause an investigation to he made into the proceedings taken against Mendel Cohn, with regard to his call into military service in Prussia.

The undersigned has now the honor most respectfully to inform the minister that, from the preliminary result of the examination, so far as yet carried, the person in question was, it appears, horn at Tchwente, in the district of Flatow, and emigrated to America about eight years ago, but returned to Germany in January, 1872, married at Flatow, and settled there.

It thus seems that article 4 of the treaty of February 22, 1868, applies to the case, and that there can be no doubt of the competency of the Prussian authorities to summon the said Cohn to military service, without regarding his naturalization as an American citizen.

While the undersigned reserves a definite reply in the matter, until the receipt of the full report of the provincial authorities, he was unwilling to omit to bring these facts at once to the knowledge of Mr. Bancroft, and avail himself at the same time of this occasion to renew the assurance of his most distinguished consideration.