to Mr. Frelinghuysen
Berlin , June 23, 1882. (Received July 13.)
Sir: Referring to your instruction, No. 9, of the 31st ultimo, I have the honor to state that in my judgment the “Boisseliercase,” which employed so many reams of paper, is definitely closed by the recent action of the German authorities in issuing discharges from citizenship to the brothers, as stated in my dispatch No. 23 of the 7th instant. I have now, however, a communication (copy inclosed) from Boisselier pére, to whose care I sent the documents referred to, that he might communicate them to his sons, wherein he objects to this proceeding of the German authorities as unauthorized, in that the young men had never applied for discharge from Prussian allegiance because they are native-born citizens of the United States, at the same time referring to me for an opinion whether the status of the young men would be impaired by accepting these discharges from an allegiance which they never owed or professed.
The accompanying “condensed statement,” which is a correct recapitulation of the facts and several steps in the case taken by the American and German Governments, and unnecessary to transmit, dwells upon the fact that the father is a naturalized citizen of the United States, although residing in Germany continuously since his naturalization for over a quarter of a century.
In my reply to him (a copy of which is inclosed) I give to him my opinion that the matter will now rest, that the form of closing the case by the German authorities is immaterial, and resembles their mode of remitting an unjust fine levied upon youths who have emigrated to America and become American citizens, and do not appear, upon summons for military service, which remission is only by pardon from the Emperor.
Objection might be taken to such pardon on the ground that it assumes an offense where there was none in fact. But the essential is the effectual quittance of any claim, not the form by which it is manifested.
I also call his attention to the fact that it would perhaps be as well to accept this solution of a long standing controversy, as it is practically sufficient, because unnecessary pressure might invite the authorities to examine his own claims to be considered an American citizen, after so long residence here, in view that the treaty fixes the limit of two years as that wherein the presumption of an intention to return to America shall prevail.
While holding that the rights of the sons are not affected by these considerations, in that they exercised their right to choose to be American citizens as soon as they had escaped the parental control which had kept them in Germany since infancy, and had gone to America and in good faith cast their lot with the land of their birth, and that I should deem it my duty to use the influence of the American Government to protect them should these discharges not be final, or other trouble at any time arise, yet he might consider, whether in his own case, it might be considered by the American Government that such a lapse of time, during which he had personally avoided discharging any obligations of citizenship towards the United States, had weakened its interest in and right to claim him as one of its citizens.[Page 165]
In this connection, and because it illustrates the position which I have taken in this letter as to the claims of the Boisselier brothers to citizenship and protection, even if the rights of the father are more doubtful, and also that I may have the advantage of any suggestions from the Department on the general subject, if it deems me in error, I beg leave to inclose a copy of an answer made by me on the 16th instant, to a dispatch of Count Hatzfeldt, asking in an analogous case at what period, from the American point of view, did the American citizenship of two brothers commence who were born of unnaturalized parents in America, and were brought here during infancy and kept here during minority, but who claimed American citizenship when they arrived at military age, the father having become naturalized after their birth, and then removing to and residing with them in Germany. Although I may have occasion hereafter to inclose this whole correspondence in the Oppenheimer brothers’ case, to which it belongs, when that case is terminated, I beg leave to submit this part of it as an exhibit in the present case for convenience of comparison.
Count Hatzfeldt asks if these sons became citizens by virtue of their birth of unnaturalized parents in America or by virtue of the naturalization of the father subsequent to their births.
I reply that by the laws of the United States it is provided that children of persons who have been duly naturalized under its laws, being under the age of twenty-one years at the time of the naturalization of their parents, are citizens of the United States, if dwelling there; that these brothers are such citizens by the fact of the naturalization of their parents, they then being minors, and then living with their parents in the United States. But I call his attention to other elements of consideration in their cases. Having been born in the United States of parents of German origin, they acquired by that fact, even if the parents had never been naturalized, the right of election of either American or German citizenship on arriving at maturity, even if in the mean time, while under parental control, they had been removed to Germany. By applying to the American legation in Germany for passports, and taking the oath of allegiance prescribed for that purpose by American law, these brothers clearly elected to be American citizens, and thus exercised their birthright to be recognized as such, and are entitled to the consideration and protection of the American Government. The exercise of such right of election carried their citizenship, by the well-understood law of relation, back to the date of their respective births.
In this connection I call the attention of the Department to the decision of the Attorney-General of June 26, 1865, found on page 564, vol. 13, Foreign Relations.
If I have called the attention of Boisselierpére to the possible considerations in his own case, as distinct from that of his sons, I trust I may be pardoned from the fact that there are cases of persons emigrating to the United States for the only purpose of procuring, by a short, temporary residence, American naturalization; which secured, they re-immigrate and live here for years, without purpose to return, avoiding the performance of all obligations to the government of their assumed choice, as well as to that of their birth. I have not found by experience that these persons are the less peremptory or exacting in their demands for ample recognition as Americans.
I have, &c.,