No. 180.
Mr. Sargent to Mr. Frelinghuysen.
Berlin , February 26, 1883. (Received March 13.)
Sir: The case of [Car] William Scheibert presents such peculiar features that I beg to lay it before you, and to ask for definite instructions in case you think it proper that I should further intervene in it. That of the Staarbach brothers involves much the same considerations, and I group them together.
On the 20th of December, 1882, Mr. Julius Scheibert, father of William Scheibert, called in person at the legation and stated that he himself emigrated to the United States in 1856, and was there naturalized in 1864. His said son was born in New York, December 22, 1856. The father returned to Germany with his family, including this son, in 1869, where he has since resided.
The son returned to the United States after three years, and came back here in 1879, and has since resided here. On the 19th of December the son was impressed into the military service.
Upon this statement, which was the apparent evidence of an extreme case, I addressed a note the same date to Count Hatzfeldt, imperial secretary of state for foreign affairs, in which, after stating the above facts, I urgently requested him to have the case promptly investigated, and, if possible, that the young man should be set free from military service and allowed to return to his parents for the Christmas holidays, and until a definite decision could be arrived at, as I believed him to be an American citizen by virtue of both his birth and his father’s naturalization, and not liable to military service in Germany; and that he had the right of any native-born American citizen to remain quietly in this country.
On the 28th of December I had a note from Dr. Busch, of the imperial foreign office, in which he assured me that the proper authorities had been instructed to expedite the matter, and the right was reserved to make further answer.
December 31 Julius Scheibert wrote to me that his son arrived at home on the 28th for a fourteen days’ furlough, and praying me to take steps for his entire liberation. To this I replied that I had fully presented his son’s case, and hoped for a speedy and favorable result, which should be at once communicated to him.
January 17 the father again wrote to me, stating that on the expiration of the furlough the son had returned to his regiment, stating his [Page 343] own extreme distress, and asking that another furlough be demanded. An answer was sent to this, calculated to soothe his feelings, and induce him to await with patience the somewhat deliberate methods of the foreign office.
January 28 he again wrote, urging diligent attention to the case.
January 29 I addressed another note to Count Hatzfeldt, again calling his attention to the fact that Scheibert is an American by birth, who has resided twenty years of his life in America, and that his parents are naturalized citizens of the United States. Inasmuch as I was not aware of any case where a native-born American had been put into the German army against his will, I stated that I could not understand why an exception should be made in this case, or why the simple facts in the case should require so long to investigate and decide upon. As the parents of the young man were much disturbed by their son’s compulsory detention in the army, I requested prompt decision, not doubting that it would result in Scheibert’s release.
On the 30th I informed the father of my second application to the foreign office on his son’s behalf, and that I hoped soon for a favorable reply. This letter the father misunderstood as an announcement that his son’s release was already ordered, and then writes under date of February 8, expressing his pain that its promise was not fulfilled, and reiterating the reasons for the release.
On the 9th I called at the foreign office and had an interview with Dr. Busch, under secretary of state in the absence of Count Hatzfeldt, and made urgent representations in the case, asking for speedy decision, and the same day informed the father that I had done so, and that he had misunderstood my previous letter in supposing that it announced his son’s release.
On the 16th of February I received a note from Count Hatzfeldt requesting me to call the next: day at the foreign office, which I did. Referring to the Scheibert case, he said he wished to be agreeable to me, and do all possible things, but the case presented difficulties.
He then told me that the father became renaturalized as a Prussian when the son was fifteen years old, and had then all his family in Prussia, and named each of his sons, including [Carl] William, the eldest, in his written application for renaturalization; that this son remained in Germany thereafter until the time came to be of service in the army, when he absented himself for some years, but had now been back for several years, and had married and settled in Prussia and engaged in business here. He thought the son was naturalized a German at the time of the renaturalization of the father, and his acts tended to show that to be his understanding also. He read to me the petition of the father and decree of the court for naturalization, copies of which I inclose, with translations. I asked for copies, and stated that I could say nothing decisive without reflection upon these new facts; that neither I nor my Government wished to ask unreasonable things, and I might refer the whole matter to you for instructions.
I had, up to that time, acted upon this case upon the theory that Scheibert père had given me all the facts, and that his son was unquestionably an American citizen, and I did not doubt the father was one also. On the same date I caused the father to be informed that in answer to my inquiries I was informed that his son, during his first visit to Germany in 1869–’72, voluntarily and with the consent of his parents became a German citizen; that he is married here, and to all appearances had taken up his residence here, and wished to know if these statements were correct.
[Page 344]The answer to this letter was dated on the 20th, and stated that when his son was recently called before the authorities to ascertain his intentions, if he intended to remain in Germany, he replied, “Not if he would have to become a soldier.” He does not admit or deny his or his son’s naturalization as a Prussian, but says the latter is not yet married, though engaged to be. It is possible I misunderstood Count Hatzfeldt in that particular, as he spoke in French. He insists that his son would not wish to remain here if he had to be a soldier, and complains that the advice of the consul at Bremen had deceived his son into security. The consuls are usually quite discreet in turning over such questions to me, as out of their province. * * *
On the 20th of February I received the accompanying legitimatization papers, and wrote to the father that I had before me copies of the document submitted by him January 20, 1870, to the magistracy of Nienberg, wherein he applied for himself and family, naming each of his children, to be readmitted to Prussian citizenship, stating that he had built a house, and intended to settle down permanently with his family; also of the decree of the magistracy granting the request. Although all my previous letters had been promptly answered, he has never responded to this one.
Copies of all this correspondence I inclose, that you may have the whole record before you. My examination of cases does not show to me any one in which the same question has arisen, and I respectfully ask your views upon it.
The following considerations present themselves to me:
The Scheibert father gave up his American citizenship for himself and family in 1870, naming this son, then sixteen years old, in the document, in which he prayed to be admitted to German citizenship. This son was then with him in Germany. By United States law it is held that where a German becomes naturalized in the United States his minor children who are with him become naturalized by the act also. I do not see how it can be claimed by the United States that the naturalization of a German in the United States naturalizes his minor children, and yet denied that the naturalization of an American in Germany does not naturalize also his minor children here. If the above consideration is not conclusive, as it may well be held to be, there are circumstances of ratification by the son which tend to fortify the view that this man is a German subject. Thus, being naturalized when sixteen years old, he said here two years thereafter, and then went to the United States when eighteen years old, and when twenty-three returned here, where he has since remained four years, engaged himself to be married, and has settled down permanently. When questioned by the authorities if he intended to remain in Prussia permanently, he said he would if he did not have to serve as a soldier. America he might use as a convenience to escape military duty, but he was willing to keep this as his home, only not to render an equivalent of service for the protection which he would receive here. His casual absence in the United States after his naturalization here was not for the purpose of regaining American citizenship, for he does not appear to have taken any steps to that end, but probably to avoid military service, which, as a Prussian, he was liable to. He has devoted himself for the past four years to comfortably settling down here as a German, upon the theory that he could at last do it without performing the duties of one, and if worse came to worse, would plead that he was born elsewhere.
These acts tend to create an estoppel in pais; to ratify the act of the father to justify the view of the imperial Government.
[Page 345]The father has two other sons, also born in America, who are serving in the German army without question on his or their part. He suddenly takes exception when this one is called on for that purpose, but conceals from me the fact that he had applied for and obtained renaturalization for himself and family.
This case illustrates the difficulty that sometimes occurs in getting the truth from the excited or secretive applicants. Like some suitors in law courts who fear to tell their lawyers the truth, these claimants sometimes conceal the essential points in their cases, and lead the legation upon a mistaken track.
Considering the peculiarities of this case, the strong reason there is for holding young Scheibert a German subject, the little value he places on any possible right from his birth by his avowed desire to live in Prussia if he can escape military service; and believing that indiscriminate demands on the imperial Government for all sorts of pretenders to Americanism should not be insisted on, but only legal and judicious ones made, such as commend themselves to our own judgment and conscience, I have informed Mr. Scheibert that I can do nothing more in his son’s case until I have definite instructions from the State Department, to which I would refer the whole matter.
The case of the Staarbach brothers involves much the same principles. The young men were born in the United States in 1857 and 1859, respectively, returned with the father to Alsace in 1871, where they have since lived, and the father became renaturalized when the sons were fourteen and twelve years old, respectively.
The facts in this case were called to my attention by a letter of Consul-General Vogeler at Frankfort, a copy of which is inclosed; and I inclose a copy of my reply to him, wherein all the facts are stated, and the considerations governing the case are fully discussed. In that case I beg to direct attention to what I say about the additional element of difficulty, inasmuch as the youths are residents of Alsace.
I have, &c.,