No. 155.
Mr. Taylor to Mr. Evarts .

No. 34.]

Sir: I have the honor to transmit herewith (inclosure I) the report of the ministry of foreign affairs in the case of Julius Bäumer, presented in your instructions No. 442, and referred to in my dispatch No. 7. While neither the manner nor the substance of the reply can be regarded as satisfactory, since it indirectly puts forward the same claim to the right of expulsion as was made by the government of Baden in the Ganzenmüller case (dispatch No. 20), appealed from by myself and finally disavowed by Mr. Von Bülow, I do not feel at liberty to take any further steps in the matter until it has received your consideration.

I have, &c.,

BAYARD TAYLOR.
[Inclosure in No. 34.—Translation.]

Mr. v. Philipsborn to Mr. Taylor .

Sir: The undersigned has the honor, referring to his communication of the 25th of May last, to inform the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. Bayard Taylor, that the investigation instituted in the matter of the expulsion of Julius Bäumer from Germany by the authorities at Münster has now been concluded.

This investigation has resulted in showing that the facts of the case are substantially in accord with the statements contained in the dispatch of the Department of State at Washington of April 30 last, a copy of which was inclosed in the esteemed note of Mr. Bayard Taylor of the 18th of May following, and on this basis the following exposition of the case is presented:

Bäumer, who by descent was of Prussian nationality, sought and obtained his discharge from this nationality in the year 1868, at the age of 21 years, thereupon emigrated to America, and, after having acquired American citizenship, returned in September, 1877, to Münster, for the purpose of sojourning there with his parents.

After he had remained there for several months, the royal government at Münster, acting on the assumption that it was not Bäumer’s intention to return to North America, but simply to evade the performance of German military duty, caused him to be notified, under date of December 12, 1877, that he must either leave the territory of the German Empire within eight days, or, in case he should remain in Germany, perform his military duty. This notification caused Bäumer to address to the royal minister of the interior, on the 20th of the same month, a request that he might be permitted to make a longer stay at Münster, as, owing to want of means, he should not be able to enter upon his return journey to America until February of the following year.

This request, which contained no complaint whatever as to the decree of expulsion itself, was responded, to by the royal minister of the interior at once, and in such manner that primarily the expulsion was suspended for the time being, and permission accorded Bäumer to reside at Münster until the middle of February next.

Bäumer, informed of this by the police authorities of Münster, declared, however, that he did not purpose availing himself of the respite granted him, but should start on his return journey to America on the 31st of January. In accordance with this [Page 229] declaration, he did leave Münster for America on the last-mentioned day, without the use of measures of force or even the existence of a necessity for the use of such.

Bäumer did not, it is thus seen, make the measure of expulsion adopted against him the occasion of any complaint whatever, either to the royal superior president of the province of Westphalia, eventually competent in the first instance for such a complaint, or to the royal minister of the interior, and the only request of any nature made by Bäumer in the course of the whole affair at once met with full consideration.

As regards the admissibility of this measure of expulsion itself, the royal government at Münster adopted it in the exercise of its constitutional competence.

Every sovereign state is entitled, under international law principles, from actuating motives of internal state police or state policy, to refuse to foreigners the privilege of sojourn. A renunciation of this right is, as has been pointed out by this government on former occasions, nowhere contained in the treaty of February 22, 1868. This right may therefore be exercised without detriment to that treaty, as well by North America against every German, and by this government against every North American citizen, in the same manner as against persons of all other foreign nationalities, in case there exist for its exercise a particular motive of the character above indicated.

To judge of the sufficiency of these motives in a concrete case appertains to the constitutionally-appointed organs for such purpose of the particular state engaged in the exercise of this its sovereign state right. This state organ is in Prussia, in the first instance, the particular royal government, or, as may be, the Lannddrostei, and was therefore in the present case of the royal government at Münster.

The decision of this latter tribunal was especially influenced by the circumstance that in the city of Münster particularly, for some years past, a not inconsiderable number of persons liable to military duty who had been discharged from German and had acquired a foreign and particularly also a North American nationality, had returned to reside permanently. In view of the fact that this false state of things, which had become a general annoyance and a danger to public order, required there a more severe application of the right of expulsion, the said government saw particular reasons for a non-indulgent course toward Bäumer also, and consequently decreed his expulsion. It is to be regretted that Bäumer did not complain of this expulsion either to the appropriate internal authorities or to the imperial government, through the mediation of the envoy of the United States. The undersigned does not hesitate to declare that, on the basis of such a complaint, the decree in question of the royal government at Münster, although its legality is beyond question, would have been canceled, in view of the circumstance that in the decision of the case by the higher authorities the existing considerations of a local nature would have been subordinated to the general points of view involved. And in view of this circumstance the royal minister of the interior gladly holds himself in readiness to direct that Bäumer, in case he should return to Prussia, be permitted to sojourn for the period of two years on Prussian territory, in so far as other and different valid reasons for the prohibition of such sojourn than those indicated by the royal government at Münster are not made to appear.

Moreover, the undersigned will take care that in future, in the treatment of similar cases, the general points of view established by the imperial government shall also receive full consideration at the hands of the local authorities.

On the other hand, the undersigned cannot recognize an obligation to replace the damages incurred, as alleged by Bäumer, through the action of the royal government at Münster, for this reason, if for no other, that this tribunal, as already shown, acted within its competence, not exceeding its powers. A sufficient foundation for such a claim would also be wanting, for the reason that Bäumer, at as early a period as November, 1877, before there was any question of his expulsion, had declared in a communication to the royal government at Münster that it was his intention, as he had a business of his own in Chicago, to visit his parents until the spring only; and also for the reason that he voluntarily made no use of the permission accorded him for a further sojourn until the middle of February following.

The undersigned also avails himself of this occasion to renew, &c.

v. PHILIPSBORN.