No. 96.
Mr. Sargent
to Mr. Frelinghuysen.
Legation of
the United States,
Berlin, June 23, 1882.
(Received July 13.)
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.,
[Page 166]
[Inclosure 1 in No. 33.]
Mr. C. G.
Boisselier to Mr. Sargent.
Borby,
near Eckernfoerde, June 20, 1882.
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,
[Inclosure 2 in No. 33.]
Mr. Sargent to Mr.
Boisselier.
United
States Legation,
Berlin, June 23,
1882.
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.,
[Inclosure 33 in No. 3.]
Mr. Sargent to
Count Hatzfeldt.
United
States Legation, Berlin, June 16,
1882.
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.
[Page 168]
[Inclosure 4 in No. 33.]
Mr. C. G.
Boisselier to Mr. Sargent.
Borby
near Eckernford, June 24,
1882.
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.,