No. 96.
Mr. Sargent to Mr. Frelinghuysen.

No. 33.]

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.,

A. A. SARGENT.
[Page 166]
[Inclosure 1 in No. 33.]

Mr. C. G. Boisselier to Mr. Sargent.

Sir: Coming home this morning, after a fortnight’s absence, I found on my desk your esteemed favor of the 6th instant, covering two documents of the Royal Prussian Government for my sons: Richard Werner and Casper Rethard Boisselier.

Looking over these documents, I discovered that the contents of the same is not in conformity with the true facts of the case, for it is stated that my sons applied for discharge from Prussian allegiance, which they never did nor could have done, being native-born citizens of the United States of America, and recognized as such by that government as well as by Prussian judicial decision. (1 Please see inclosed copy 1.)

I imagine that these documents would not be fully satisfactory to my sons, and therefore beg leave to return the same for your closer examination.

In order that you may better understand this case, and trusting you will not deem it obtrusive, I take liberty to send you, inclosed, several documents relating to the matter, in connection with a condensed statement of the case.

However, if after reading said papers, it appears to you that it would not impair my sons’ status as native-born American citizens, to accept a discharge from an allegiance to a government they never belonged to, then I would politely request you to return the documents in question to me, that I may be enabled to deliver the same into the hands of my sons as soon as possible.

Most respectfully, your obedient servant,

C. G. BOISSELIER.
[Inclosure 2 in No. 33.]

Mr. Sargent to Mr. Boisselier.

Sir: Your letter of the 20th instant, inclosing a statement and sight documents relating to the case of your sons, Richard and Casper, is received, and I have carefully examined all the preceding correspondence in the matter.

It belongs to a class of which the legation has many cases in the course of a year, where young men, whose fathers continually reside in Germany, are summoned for military service, and where they fail to appear, and it is shown that they are living elsewhere, the property of the father is attached as security for a fine which has been imposed on the youths. This fine cannot be collected, however, unless the estate is divided, and in case that does not occur, the attachment expires by limitation in about seven years.

Following some suggestions originally made in this case by Mr. Secretary of State Evarts, and which it may be timely to repeat, it may be remarked there might possibly be some reason in the views taken by the German Government, inasmuch as you, the father, have resided in Germany so many years after naturalization as to have incurred the risk, under the Bancroft treaty, of having lost your American nationality, as well as having involved your minor sons in the same loss. You were naturalized in the United States, and after some years’ residence returned to Germany with your infant sons in 1856, and have resided here ever since, viz, twenty-six years. By the treaty it is provided that the German Government may deem the residence of a naturalized citizen for over two years as an abandonment of his American nationality. Thus the treaty says:

“If a German naturalized in America renews his residence in Germany without the intent to return to America, he shall be held to have renounced his naturalization in the United States. * * * The intent not to return may be held to exist when the person naturalized in one country resides more than two years in the other.”

Though the German authorities have not taken the ground in your own case that you shall be avowedly a German citizen or leave the country, it is never too late for them to do so, and they would probably take such steps if unnecessarily pressed in the matter. It might also be considered by the American Government that such a lapse of time during which you have personally avoided discharging any obligations of citizenship towards the United States has weakened its interests in and right to claim you as one of its citizens.

In my opinion, the case of your sons is somewhat different. They were born in the United States, have never been German citizens, or sought to become such. While minors, and under parental control they were brought to this country and kept here independently of their own procurement. When they became of age they exercised their [Page 167] right to return to America and to choose American citizenship, and have ever since conducted themselves as such, and in perfect good faith. Their birth in the United States gave them the right to assume American citizenship as soon as emancipated from parental authority, and such assumption carried their citizenship by relation back to the date of their birth.

As regards the special form of the discharge from Prussian allegiance, I would say that this is the only official form the decision could take; just as in the case of unjust or illegal fines paid or levied for neglect of military service, the only efficient discharge is a pardon under the hand of the Emperor, even when the individual is innocent and the authorities culpable. Your sons’ discharges appear to be made out on lithograph forms which were very possibly prepared, for the cases of Schleswig citizens who had availed themselves of their right to give up their Prussian citizenship after the annexation of Schleswig Holstein, and which must be carried out within six months.

It is my opinion that your sons will hear no more in the matter from the authorities, and that their rights and honor as American citizens are in no way compromised by these documents. But, in case they should be in any way again molested, the legation stands willing and ready to use the influence of the American Government for their protection. Your several inclosures as stated are herewith returned; your statement being retained.

I am, &c.,

A. A. SARGENT.
[Inclosure 33 in No. 3.]

Mr. Sargent to Count Hatzfeldt.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honor to acknowledge the receipt of the esteemed communication of his excellency Count Hatzfeldt, provisional secretary of state for foreign affairs, dated June 5, 1882, and is gratified to learn therefrom that the appropriate authorities have been instructed to abstain from measures of force against the brothers Bernhard and Henry Oppenheimer, at Frankfort-on-the-Main, until the conclusion of the investigation in their cases.

The undersigned also observes the inquiry submitted by his excellency relative to these cases, viz:

“For the purpose of this investigation of the relations as regards nationality of the Oppenheimer brothers, it is requested that information may be kindly furnished as to the point of time from which, from the American point of view, the said brothers are regarded as Americans, and in particular as to whether they have acquired North American nationality through the fact of their birth within the territory of the United States (at Washington, in 1857 and 1859), notwithstanding the circumstance that their father had at that time not yet become a naturalized citizen, or through the naturalization of their father, in 1865.”

The undersigned takes pleasure in complying with the request of his excellency as above quoted, and to state:

1st. That the brothers Oppenheimer were born in the United States of German parents, who emigrated to the United States and became citizens thereof in due course of time, but after the birth and durign the minority of these sons.

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.

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.

2d. But it may be further stated that the cases of these brothers have other elements for consideration. 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 majority, 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 the 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 dates of their respective births.

The undersigned, while he has thus the honor to furnish the information requested, avails himself of this occasion to renew to his excellency the assurance of his most distinguished consideration.

A. A. SARGENT.
[Page 168]
[Inclosure 4 in No. 33.]

Mr. C. G. Boisselier to Mr. Sargent.

Sir: Acknowledging the receipt of your kind lines from the 23d instant, which came into my hands this afternoon with the accompanying papers, I beg leave to express my best thanks for your very prompt attention to the case in question, and your clear explanation of the same, in which my son Richard Werner, who has just returned to me from a trip in the country, joins me.

The papers for himself and for his brother, Casper Dethard, I have handed over to him. He will return to the United States on the 30th of next month.

I remain, sir, &c.,

C. G. BOISSELIER.