In your instruction, while referring to “conflict with the provisions of
existing treaty,” no special treaty was mentioned. I assumed, however, that
the Prussian treaty of 1828 was referred to, and accordingly quoted it. I
add the remark that the note from the foreign office does not affirm the
restoration of German citizenship, but only the renunciation of the American
right.
It is a peculiarity of the very imperfect treaty of 1868 that Article IV
seems to leave the citizenship of the renouncing returned emigrant “in the
air.”
It results from the German view, that he is a man without a country after two
years’ residence here.
[Inclosure in No. 189.]
Mr. Kasson to Dr.
Busch.
Legation of the United States,
Berlin, February 25,
1885.
The undersigned, envoy, &c., of the United States of America, begs to
recall the attention of Dr. Busch, under secretary of state, in charge
of the imperial foreign office, &c., to the note which the
undersigned had the honor to receive from the foreign office under date
of December 31, 1884.
The undersigned, in making acknowledgment of its reception; reserved its
contents for the appreciation of his Government.
While the subject of the note involved the rights of American-born sons
whose German-born fathers had during their minority returned with them
to Germany to reside permanently, a declaration is added respecting the
nationality of the father, which seems to have been made without a
sufficient consideration of the language of the treaty of 1868.
That declaration is understood as follows:
“As regards the fathers of such sons, no doubt can exist that they are to
be regarded as having renounced their naturalization by a longer sojourn
than one of two years, pursuant to the treaties regulating nationality
of 1868, concluded with the United States.”
The Government of the undersigned cannot find the reasons which would
justify its concurrence in this view.
In its judgment the treaty cannot of itself convert an American citizen
into a German, nor a German into an American, against his will. Even the
renunciation of one citizenship does not of itself create another.
It does not profess to make provision for a resumption of a citizenship
previously lost or renounced. Its object was rather to recognize the
obligation of a new citizenship which had been lawfully acquired in the
other country.
The fourth article of the treaty of 1868, in its first clause, it is
true, recognizes the renunciation of the newly-acquired citizenship by a
total abandonment of the intention to return to the country where his
new citizenship was acquired. But it does not affirm the restoration of
the original allegiance. On the other hand, there are many naturalized
Americans who reside for more than two years in Germany with the
constant intent to return to the United States. They often carry on a
business in both countries, beneficially increasing the commercial
relations between the two.
These persons, however, long residing in the original country, with the
intent of later return to the adopted country, have always been regarded
by the United States as being still citizens of the country which they
adopted. And such an interpretation it is supposed had received the
acquiescence of the German Government, in view of the optional language
of the third clause of the fourth article, which employs a different
expression from that of the first clause. Such a practical construction
has been one of the most beneficial results of the treaty. For it has
served to cultivate the relation of commerce and friendship between the
two countries.
The Government of the United States receives with satisfaction the
opinion declared by the German Imperial Government which recognizes that
the American children of parents naturalized in the United States have
an unconditional and durable American citizenship.
On the other hand it learns with regret that the Imperial Government
regards itself as justified by international principles in refusing the
sojourn in Germany of these native born American citizens, although they
are, as such, obedient to the laws and ordinances there prevailing. In
these cases it is only a question of native citizens of the United
States. There can be no distinction as to them based on national birth
of the parents. Such children are not within the provisions of the
treaty of 1868. This refusal of the right of peaceful sojourn,
therefore, seems to the American Government to be in contravention of
the spirit and even the letter of other treaties.
Thus by the first article of the treaty of 1828, with Prussia, it is
provided that the inhabitants of the respective states “shall be at
liberty to sojourn and reside in all parts whatsoever
of said territories, in order to attend to their affairs; and
they shall enjoy to that effect the same security and protection as
natives of the country wherein they reside, on condition of submitting
to the laws and ordinances there prevailing.”
It can hardly be expected that the United States Government can acquiesce
in a rule which, by administrative order, in either country, creates a
class of residents who, while equally under the protection of treaties,
maybe summarily expelled from the country where they are residing in
peaceful pursuit of their avocations and in obedience to all the
laws.
If my Government rightly understands the scope of the principle claimed
by Dr. Busch to be a principle of international law, it asserts, in
effect, that any native citizen of the United States, sojourning in
Germany for pleasure, for business, for study,
[Page 406]
or for whatever purpose, may be expelled when the
“circumstances indicate that the persons in question use their American
citizenship only for the purpose of withdrawing themselves from the
duties, and particularly from the military duty devolving upon the
domestic population, without being disposed to abandon their permanent
sojourn in Germany, and the advantages connected therewith.”
How can such a rule be applied to admitted aliens, aliens even by birth?
They are not withdrawing themselves from any duty of military service,
because as aliens they owe no such duty. There can be no offense to
public order in the non-performance of a service which neither the local
law nor the law of nations imposes.
No ground is perceived by my Government which will justify a separation
of such a class of residents from those intended to be protected by the
language of the treaty above referred to. The suggested use of American
citizenship is precisely one of the uses assigned to it by the law of
nations, namely, the exemption from foreign military service. Can this
fact, then, be inquired into as a motive of residence, and be construed
into an offense for which a foreign resident may be withdrawn from
treaty protection, and refused the right of sojourn?
The undersigned is instructed to present these views to the just
consideration of his Imperial Majesty’s Government, in the hope that
they will lead to a common understanding of the rights of the citizens
of each country peacefully residing in the other.
He avails, &c.
