Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1880

No. 282.
Mr. White to Mr. Evarts.

Legation of the United States,
Berlin, September 1, 1880. (Received September 23.)

No. 146.]

Sir: I have the honor to state that a note has been received from the foreign office of the German Empire, of which a copy and translation are inclosed, announcing in substance that the military fine of John Schehr has been confirmed on the ground that the treaty of 1868 does not extend to Alsace-Lorraine.

The decision will doubtless surprise you; the circumstances under which it has been rendered are as follows:

On February 27, 1879, application was made to the foreign office in behalf of Michael Pacquet, for the remission of a military fine. No answer having been received from the foreign office, attention was again called to the case on June 3 and November 26, 1879, with the same result.

On March 10 of the same year, the cases of the brothers Franz and Theobald Hess, who were subjected to fines, were presented, and on March 31 the foreign office replied that the cases should be investigated; but nothing having been heard regarding the matter, attention was again called to it on October 3, 1879.

On November 21, 1879, the case of Joseph Lauber, who was fined and ordered to leave, was presented, and on the 27th of that month the foreign office replied that an investigation had been ordered. Similar replies had been received from the foreign office in the case of Alphonse Sester, of February 9 last, of Alois Fischer, February 12 last, and of J. P. Q. Schaug, of March 20 last.

While cases apparently similar, arising in various other parts of the empire, were dealt with by the foreign office in the usual time, there was in the cases above mentioned, all of which occurred in Alsace-Lorraine, great delay. I naturally attributed it to the condition of those provinces, different as it is from that in the older parts of the empire; but from time to time made efforts to secure a decision, Mr. Everett having already endeavored in vain to do so. Soon after my arrival I called the attention of the foreign office to the matter, and followed this up by suggestions and requests to the same purpose in my conversations with Mr. von Billow on other subjects.

At a still later time I called upon Mr. von Philipsborn and urged upon him the necessity of a decision at the earliest moment possible, alluding to the fact that my general dispatch and report on all the cases of the year had been long delayed, waiting for a decision on these very cases; and on leaving him I placed in his hands a memorandum of them. On one other occasion also, calling on business, I alluded to these decisions so long delayed, and received assurances that everything possible should be done, and I again waited.

In addition to the difficulties in Alsace-Lorraine, I felt bound to make allowances for another cause of delay, naMély, the many changes which have taken place in the foreign office since my arrival. As you are aware, after the death of Mr. von Bülow, the duties of the ministry were sometimes discharged by Mr. von Philipsborn and sometimes by Mr. von Radowitz; but they were finally transferred to Prince von Hoheniohe-Schillingsfürst, who, though ambassador at Paris, is now also minister of foreign affairs ad interim. On the 13th of October last, I wrote to Mr. von Philipsborn on the subject, and finally called upon him, making a statement of the matter and leaving a memorandum.

These cases having become so numerous, and the time since the earlier ones so long, naMély, nearly eighteen months, and the usual notes and interviews proving to be entirely ineffectual, it seemed absolutely necessary to do something which would bring an answer; and I therefore, in my above-mentioned note of October 13 last, asked for distinct information as to whether the principles laid down in certain circulars in execution of the treaty of February 22, 1868, with the North German Confederation, addressed by the Prussian minister of justice and of the interior, on the 5th of July, 1868, to certain Prussian courts and officials for their guidance, were to be observed in Alsace-Lorraine, which request was calculated to elicit a declaration from the Imperial German Government as to whether the treaty in question applied to that territory.

Difficult as it was to believe that an interpretation on which all the business in regard to such cases up to February, 1879, had been conducted was to be abandoned, especially in view of the clear statements that had been made in the matter by the immediate predecessors of the present minister, it was very evident that some change of policy had been determined upon; and it seemed dangerous longer to remain in the dark regarding it.

* * * * * * *

Considering the development of the matter thus far, and the importance of warding off great hardships from those who by this new decision have been or may be brought into great difficulty or even distress, I have not felt warranted in delaying a note to the foreign office until receiving more definite instructions from the Department. A copy of this note is inclosed.

* * * * * * *

I have, &c.,

AND. D. WHITE.

[Inclosure 1 in No. 146.]

Mr. White to Mr. von Philipsborn.

Legation of the United States,
Berlin, October 13, 1879.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honor to call the attention of his excellency Mr. von Philipsborn, in charge of the foreign office, to the case of John Schehr, a native of Alsace and a naturalized citizen of the United States.

From Mr. Schehr’s statement, it appears that he was born at Mothern, January 31, 1855; that he emigrated to the United States October 28, 1873; that he was naturalized September 3, 1879, and returned to Germany on a visit in the same month. It further appears that the kreisdirector of Wessemburg has summoned Mr. Schehr to pay a fine of 600 marks for non-performance of military duty, and when shown the ministerial decrees of 1863, addressed to officials of the empire, and requiring them to report the case to the minister of justice before action, is understood to have replied that these decrees did not apply to Alsace, and that Mr. Schehr did wrong to address the American legation instead of petitioning His Majesty the Emperor.

The undersigned, in view of the fact that a space of only ten days has been allowed to Mr. Schehr to obtain a remission of his fine, would respectfully request his excellency Mr. von Philipsborn to cause this case to be promptly investigated, and that if the facts prove to be as stated, this fine may be remitted.

The undersigned would also be glad to be informed if it is a fact that the ministerial decrees, which form an integral part of the treaty of 1868, have not been extended to Alsace-Lorraine, or have been superseded by others, as the local authorities in that district appear invariably to disregard them, and needlessly among naturalized American citizens returning to visit their families.

The undersigned incloses the citizen paper of Mr. Schehr with the respectful request for its ultimate return, and avails himself, &c.

AND. D. WHITE.

[Inclosure 2 in No. 146.]

Circular of Prussian ministers of July, 1868.

circular of the minister of justice.

In concluding the treaty of the 22d of February of this year (Bulletin of the Laws of the Confederation, p. 228) agreed upon between the North German Confederation and the United States of America, respecting the nationality of emigrants, it was the prevailing intention that in conformity to the second article of that treaty the punishment incurred by punishable emigration is not to be brought to execution on occasion of a return of the emigrant to his original country if the returning emigrant has obtained naturalization in the other country in conformity to the first article of said treaty.

In consideration whereof, in every case where legally valid condemnations of this kind exist against such persons, an official report is to be made to the minister of justice respecting the remission of the declared punishments and costs by way of grace; and, in order to shorten and simplify the matter, these recommendations are to be consolidated in a table, if the number of cases is large enough to justify a tabular form of report.

Berlin, the 5th July, 1868.

The Minister of Justice:

Dr. LEONHARDT.

To all royal courts of appeal, to all royal supreme courts, and to the state attorneys-general in Kiel, Cassel, Wiesbaden, and Frankfort-on-the-Main.

circular of the 6th of july, 1868.

Ministry of the Interior.

In concluding the treaty of the 22d of February of this year (Bulletin of Laws of the Confederation, page 228) between the North German Confederation and the United States of America, it was the prevailing intention, that, in conformity to article 2 of this treaty, the punishable action, committed by the unauthorized emigration of a citizen of the Confederation to the United States of America, should not be made the ground for a penal prosecution upon the return of such person to his former country after absence of not less than five years, and that the punishment for such action, even though already legally declared, should not be consummated if the person has acquired in America the right of citizenship in conformity to article 1 of said treaty.

The royal government is therefore instructed in the cases indicated to abstain from recommending trial and punishment, and in general from every kind of prosecution, whenever the person in question is able to produce the proof that he has become a naturalized citizen of the United States of America, in conformity with the first clause of article 1.

The proper judicial authorities will be furnished by the minister of justice with an instruction in all cases where legal sentences of this kind, against the persons above described, exist, to report officially the remission, by way of grace, of the declared punishments and costs.

Berlin, the 6th of July, 1868.

For the Minister of the Interior:

SULZER.

To all governments of the monarchy.

I send a copy to your, &c., with the very humble request that you will at once be pleased to provide the bailiwicks with the proper notice. For the Minister of the Interior:

SULZER.

To the chief president at Hanover and to the president of the police here, a copy in like manner for their guidance.

[Inclosure 3 in No. 146.—Translation.]

Prince von Hohenlohe to Mr. White.

Foreign Office, Berlin, August 5, 1880.

The esteemed note of the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. And. D. White, of October 13 last, concerning the case of John Schehr, a native of Alsace-Lorraine, naturalized in the United States, and several analogous cases, and particularly the inquiry contained in the said esteemed note as to whether the decrees of the royal Prussian ministers of the interior and of justice, in execution of the North German and North American treaty of February 22, 1868, regulating nationality, were applicable to Alsace-Lorraine, have led to a close consideration among all the authorities concerned of the empire and of the imperial lands (Alsace-Lorraine) as to whether the provisions of that treaty or of one of the treaties regulating nationality, concluded in 1868 between the South German State and the United States of America, were to be regarded as having validity and legal force for Alsace-Lorraine.

This consideration has led to the result, that as Alsace-Lorraine at no time constituted a part of the North German Confederation, or belonged to one of the South German States (Bavaria, Württemberg, Baden, South Hesse), none of these treaties, agreed upon in 1868, appear to apply to Alsace-Lorraine.

The laws concerning nationality existing in Alsace-Lorraine, therefore, govern there without any treaty limitations in favor of people emigrating thence to the United States. These people, therefore, unless formally discharged from Alsace-Lorraine allegiance, do not lose such allegiance until they have resided abroad uninterruptedly for the period of ten years, and are during this period required to perform the duties devolving upon them in consequence of their allegiance to Alsace-Lorraine.

As John Schehr, who returned in September last to Alsace, and whose certificate of naturalization is herewith respectfully returned, therefore still owes allegiance to Alsace-Lorraine, and is in duty bound to perform military service, having withdrawn himself from the performance of this duty, he has been legally adjudged by the imperial land court at Strasburg, under date of December 31, 1878, to a pecuniary fine of 600 marks.

While the undersigned regrets that under these circumstances it has not proved feasible to obtain a cancellation (aufhebung) of this penal judgment, and while expressing the purpose of hereafter making reply to the other cases hereinbefore mentioned, he also avails himself, &c.,

HOHENLOHE.

[Inclosure 4 in No. 146.]

Mr. White to Prince von Hohenlohe.

Legation of the United States,
Berlin, August 28, 1880.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honor to acknowledge the esteemed note of his highness Prince von Hohenlohe-Schillingsfürst, secretary of state, ad interim, for foreign affairs, dated August 5 last, referring directly to the case of John Schehr, but indirectly to the application of the treaty of 1868 to Alsace-Lorraine, and he desires most respectfully, but at the same time most earnestly, to urge upon the attention of his highness the following considerations:

First. However weighty may have been the reasons which led to the declaration announced in the note of his highness, above referred to, the undersigned believes that his highness will agree that, in view of the development of the North German Confederation into the German Empire, and the incorporation of Alsace-Lorraine with the latter, a very strong argument may be made in support of the proposition that the treaty of 1868 between the United States and the North German Confederation became binding upon the empire which was developed out of said confederation, and especially upon the new acquisition of territory made by the same controlling power which originally signed the treaty.

Second. This view was distinctly announced at the establishment of the empire by the American envoy, Mr. Bancroft, as that which both parties agreed to, and in his entire correspondence with his own government he steadily and constantly declared it to be undisputed by the Imperial German Government.

Third. That the American envoy, Mr. Bancroft, was not mistaken in this view is shown by the fact that this construction of the treaty as bearing upon Alsace-Lorraine has been acquiesced in fully by the imperial government for nearly ten years, as is clearly shown in the entire correspondence in the following cases, and especially in the notes of the imperial foreign office, bearing the dates subjoined:

1. August Mély, note of March 20, 1873.

2. Simon Weil, note of June 7, 1875.

3. Benjamin Becker, note of March 6, 1878.

4. Joseph Wackermann, notes of June 11, 1878, August 23, 1878, July 24, 1879.

5. George Wehrung, note of December 16, 1878.

6. Elie Bloch, notes of January 25, 1879, July 13, 1879.

7. Edmund Klein, notes of January 26, 1879, April 28, 1879.

8. Frank Lütz, note of January 31, 1879.

9. George Steig, note of April 9, 1880.

These cases, with the exception of those of Lütz, Mély, and Wackermann, were decided in favor of the United States, and, with the exception of that of Mély, were presented on the basis of the treaty of 1868. In not one of them was a favorable decision rendered on the ground of ten years’ absence from Alsace-Lorraine or on the ground of a previous discharge from Alsace-Lorraine citizenship, and in not one, as far as the documents in the various cases show, was it possible to put in such a plea. Not one of these naturalized American citizens had been absent from Alsace-Lorraine for ten years.

Fourth. The case of Mély, though decided adversely to the claimant, would seem to furnish conclusive evidence that the imperial government considered the treaty of 1868 as applying to Alsace-Lorraine. In reply to a communication of this legation, written in behalf of Mr. Mély, who had been called upon by the authorities of Alsace-Lorraine to refund the amount of 2,271 francs which had been paid him for damages to Ms personal property during the war, his excellency Mr. von Bülow, then in charge of the imperial foreign office, stated in his note of March 20, 1873, after informing the legation that the indemnity above referred to had been so allowed, as follows: “But when Mély subsequently produced a certificate of naturalization and claimed American citizenship in order to prevent the entry of his son’s name on the military roils, the circuit director (kreisdirector) of Saarburg; decreed, under article 1, No. 4, of the law of June 14, 1871, the re-collection of the indemnity,” the amount being retained from a credit due to Mély by the community for work performed.

When subsequently a question of the right of further sojourn in Alsace-Lorraine of Mr. Mély’s son arose the circuit director above referred to, seemingly in strict keeping with the position assumed by Mr. von Billow as to Mély’s nationality, informed Mély, in a communication dated Saarburg, March 2, 1877, a copy of a translation of which, as also of the covering letter of Mr. Mély, is herewith inclosed, the original having, at his request, been returned to him, as follows: “To your communication of the 27th ultimo, I respectfully reply that the treaty concluded between Germany and America, on the 22d of February, 1868, applies also to all persons emigrating to America and returning thence who were born in Alsace-Lorraine.”

Although the case of Wackermann was decided adversely, the undersigned nevertheless cites it, for the reason that in the note of August 28, 1878, of the late minister of the United States at Berlin, Mr. Bayard Taylor, in which this case was presented to the imperial foreign office, the grounds on which the right of Wackermann to sojourn for two years in Alsace-Lorraine was claimed were distinctly stated to be the provisions of the treaty of February 22, 1868, as were, indeed, almost invariably the claims for relief addressed by this legation to the imperial foreign office in kindred cases.

Mr. Taylor, in the note referred to, after acknowledging the receipt of the communication of the 25th instant of his excellency Mr. von Radowitz, in charge of the imperial foreign office, “communicating the decision of the imperial government expelling Joseph Wackermann, of Reichshofen, in Alsace-Lorraine, before the expiration of the two years’ stay permitted to all German-American citizens by article 4 of the treaty of February 22, 1868,” adds, “While trusting the imperial foreign ministry possesses full and satisfactory reasons for making this case an exception to the above stipulation of the treaty,” &c., stating, further on, “The undersigned does not mean in any way to question the action of the imperial government in accordance with existing laws; but he would most respectfully request that in future cases where the provision contained in article 4 of the treaty of February 22, 1868, is suspended or set aside, a distinct specification of the nature of the offense may be furnished to this legation.”

In reply to this note of his excellency Mr. von Bülow, imperial secretary of state for foreign affairs, no dissent whatever was expressed to the position thus distinctly assumed by Mr. Taylor that: the treaty of February 22, 1868, applied also to Alsace-Lorraine, his excellency basing the enforcement of the decree of expulsion of Wackermann solely on his bad behavior at Reichshofen. Nor has such dissent ever been expressed in any reply of the imperial foreign office to the numerous communications from this legation assuming this position, until now in the case of John Schehr, who, as it is now declared, still owes allegiance to Alsace-Lorraine, although in all the cases hereinbefore mentioned, and in many others which have been subjects of intervention by this legation, the imperial government has recognized the American citizenship of the individuals concerned, and has applied to their cases the provisions of the treaty of February 22, 1868.

Though the case of Lütz was also decided against the United States, it is nevertheless striking evidence that the imperial government considered the treaty of 1868 as extending to Alsace-Lorraine. The decision against Lütz seems to have been based upon fraud in his naturalization papers, and upon that alone; the discovery of this fraud was the result of careful examination of records, documents, and dates—a tedious examination which the imperial government would have spared itself had it considered Lütz as not coming under the treaty of 1868.

Fifth. This construction of the treaty having been acquiesced in and adopted by both parties during nearly ten years, the said construction has naturally come to be considered throughout the United States as fully settled, and naturalized Citizens of the United States, formerly resident in Alsace-Lorraine, are therefore likely at any moment to return to their old homes for temporary visits, entirely innocent of any intention to violate the laws of the empire, entirely ignorant of any change in the views of their relations to the German Government; and are therefore liable to be arrested, fined, placed in the army, or summarily expelled from the country; and as they are entirely unprepared, not expecting anything of this kind, the detriment to their business and the distress to their families will be all the greater. Even now the legation is in receipt of a communication of the 15th instant, from Mr. Elie Bloch, the subject of the case mentioned under No. 6, hereinbefore, in which he states that he has been ordered to leave the country, to which he did not return from the United States until January 28, 1879, and adds that when he showed the local authorities at Bischweiller the letters from the legation acquainting him with the favorable decisions obtained in his case from the imperial government, these authorities refused to give any attention to his plea, informing him that a new law had been made since his case had been submitted to the minister for foreign affairs, and this notwithstanding the note of January 25, 1879, in which his excellency Mr. von Billow, the late secretary of state for foreign affairs, informed the legation that he had recommended to the appropriate authority (the legation felt itself justified in considering this recommendation as equivalent to a command) that Mr. Bloch be allowed to return to his native place, and to reside there two years without being liable to the infliction of a penalty against his person or his property. And notwithstanding the note of July 13, 1879, of his excellency Mr. von Philipsborn, in charge of the imperial foreign office, in which the legation was informed that the fine imposed upon Mr. Bloch for violation of military duty had been remitted together with costs.

In connection with this case the undersigned begs leave to state that he will make Mr. Bloch’s application for permission to remain at Bischweiller until October 1, next, at which time he intends to return to the United States, the subject of a special note to his highness.

Sixth. Under the same circumstances and for the same reasons, a large number of naturalized citizens of the United States, formerly resident in Alsace-Lorraine, are liable to be subjected to great and unexpected hardship by the imposition of military fines for which they are utterly unprepared, their cases being similar to those already adjudged favorably by the imperial authorities, and they would thus be virtually punished by a law ex post facto in its character as far as they are concerned.

Seventh. While the construction alluded to in the note of his highness may thus bring the deepest distress on individuals and their families, vexation to their friends, and consternation to many American citizens of German birth, and irritation to the hearts of millions of people on the other side of the Atlantic, the former construction already adopted, as above shown, by his highness’s predecessor in office, has inflicted, and can inflict, but a comparatively trifling annoyance upon the authorities of Alsace-Lorraine. The records of the imperial foreign office will show that the number of cases which have arisen in the last ten years has been small, only averaging about two cases a year, and there are no signs that the number of such cases is likely permanently to increase.

In view, then, of these facts, namely, that the treaty of 1868 was applied to Alsace-Lorraine, and acted upon by both the German and American Governments during the whole of the period which has elapsed since the incorporation of these districts into the empire; that the inconveniences are apparently trifling; that the benefits to both nations are great, especially in consolidating the old traditional friendship of the two nations, which has existed uninterruptedly from the time of the great Frederick until the present hour, the undersigned would most seriously urge upon his highness, the secretary of state ad interim for foreign affairs, a reconsideration of the decision referred to, and also, in any case, that the application of it be suspended and held in abeyance until the undersigned shall have been empowered to present more definite views from the government at Washington, and until such publicity be given in the United States to the understanding officially, arrived at between the two nations that cases of hardship to unsuspecting and innocent persons, with their necessarily irritating effect upon the two nations, may be avoided.

And he would especially urge that in the cases of Michael Pacquet, presented February 27, 1879; Franz and Theobald Hess, presented March 10, 1879; Joseph Lauber, presented November 21, 1879; Alphonse Sester, presented February 9, 1880; Alois Fischer, presented February 12, 1880; Jean P. Q. Schang, presented March 20, 1880; Alois Genres, presented June 11, 1880; Aaron Weill, presented June 28, 1880; Nicholas V. Gabriel, presented July 2, 1880; Solomon Bloch, presented August 11, 1880; Elie Bloch, presented August 28, 1880, as well as in the case of John Schehr, the penalties of whatever kind imposed may be remitted, if the statements made by these persons be found correct, on the ground that they returned unsuspectingly and in good faith, relying upon the settled construction of the treaty of 1868, by the imperial government, in all previous cases similar to their own, and that, at least, so far as they are concerned, the penalties imposed are of a law ex post facto. To this last point he would especially call the attention of his highness, relying implicity on his highness’s sense of justice.

The undersigned may also here state that the question to which his highness the minister of foreign affairs refers was asked without the slightest expectation of an answer of the kind received; that in view of the facts above stated it was supposed that only one answer could possibly be given to it, and that it was hoped that the question would suggest to the imperial foreign office a strong argument based both on justice and policy in favor of bringing to a conclusion cases which had been so long delayed.

In conclusion the undersigned would apologize to his highness for the delay in this reply, caused by the fact of his absence from Berlin and the necessity of a minute study under considerable difficulty of the voluminous documents in the considerable number of cases referred to.

The undersigned avails himself, &c.

AND. D. WHITE.