No. 299.

Mr. Kasson to Mr. Bayard.

No. 265.]

Sir: I beg to invite your special attention to tbe note from the German foreign office, of which a copy with translation is herewith inclosed.

The note is evidently written in a tone of conviction, and aims to fairly meet the considerations presented in the Department’s instruction, No. 95.

In my No. 189, I called the Secretary’s attention to one of the assumptions of that instruction which I thought not to be applicable as an objection to the German argument. Still, in executing that instruction by my communication to the foreign office, I felt bound to omit no point in the Department’s views as communicated to me.

This point in our argument is first handled by Count Hatzfeldt, who takes precisely the position which I indicated as the proper one in that dispatch to Mr. Frelinghuysen.

If the loss of American citizenship is first assumed, we can have no further right of intervention, nor duty to perform, in respect to German action against one who would have thus become an alien to both Governments. But the fundamental question is, has the naturalized citizen lost his American right under the treaty of 1868 by virtue of the length of his residence in Germany, as claimed by the German Government?

The note of Count Hatzfeldt appears at first to yield something to my argument (foreign office No. 37) against the arbitrary right of our Government to expel at its will a citizen or subject of the other country. It passes soon, however, to a practical affirmation of the inherent right of each Government, for reasons satisfactory to itself, to expel a foreigner, notwithstanding the general provisions of our treaties of amity and commerce, which I referred to.

Upon this head it still appears to me that our argument is the stronger, that this right is dependent upon a sufficient cause, and, that this sufficiency is a fair subject for diplomatic reclamation. This would not exist if the German contention is justifiable, which claims for itself an absolute and irresponsible exercise of the right.

The further view presented by the note, touching the abuses which exist, and may continue to increase, of a really German population permanently established in their midst, which claims a foreign allegiance, and which yet renders no duties to either this or the allegiant country—[Page 417]this view deserves a candid consideration when an effort shall be made for a final settlement of our pending controversy.

In view of the recent change of administration at Washington, I have not felt at liberty to continue the correspondence under my former instructions. I have therefore, reserved the questions for the further appreciation of my Government, as indicated in my note (foreign office No. 66), a copy of which is herewith inclosed.

I have, &c.,

[Inclosure 1 in No. 265.—Translation.]

Count Hatzfeldt to Mr. Coleman.

From the note of Mr. Kasson, dated February 25 last, the undersigned understands that the Government of the United States has raised a series of objections against the justice of those decisions which have been arrived at by the Government of His Majesty the Emperor with respect to former subjects of the Empire who have returned to Germany, after naturalization and a sojourn of five years in America, as well as respecting the sons born in the United States of such subjects.

After having considered the contents of the note referred to with an attention corresponding with the importance of the subject, the undersigned, to his regret, does not find himself in a position in which he is able to hold out a prospect of a change in the decisions in question. The expositions contained in the note of the 25th of February are directed primarily against the remark contained in the note of the foreign office of December 31 last, which reads:

“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.”

In order to show the untenable nature of the position indicated by these words the envoy argues that article 4 of the treaties could, obviously, in case of the loss of the nationality acquired by naturalization, not have the effect of restoring at the same time the former nationality of the person in question. Such a really untenable assumption was, however, not expressed in the words which have been cited of the note of the foreign office.

The Government of His Majesty the Emperor is of the opinion rather that the persons to whom the conditions of article 4 of the treaties apply are to be reckoned neither as American citizens nor as subjects of the Empire, but as individuals without nationality.

Former subjects of the Empire who are in this case are, however, not dispensed from military duty in Germany. On the contrary, they are subject to this duty under the more particular provisions contained in section 11 of the imperial military law of May 2, 1874. (Imperial Laws, page 45.) Further, the envoy attaches weight to the optional language of the third clause of article 4 of the treaties, where it is said that the renunciation of the naturalization may be held to exist when the person resides more than two years in the country.

As far as the undersigned can perceive, the meaning of that expression is the following: In general the permanent transfer of sojourn to the land of the former nationality without the intention of returning to the country of adoption is intended to entail the consequence that the person is to be regarded as renouncing the naturalization acquired in the other country. In view, however, of the difficulty of proving in every particular case that the settlement (niederlassung) has taken place without the intention to return, and because an inward (mental) operation of this sort can only be deduced from outward circumstances which may be susceptible to varied interpretation, it has been agreed that the fact of a sojourn prolonged beyond the period of two years shall be sufficient to give to each of the treaty-concluding parties the formal right to treat the person as having renounced the nationality acquired by naturalization.

For the rest, the foreign office, in the words cited from its note of December 31 last, did not mean to intimate that on the German side this right would be exercised in all cases without distinction. The Government of the United States may rather rest assured that the German authorities, in the application of that treaty right, will, as heretofore (already), allow all reasonable consideration to prevail.

[Page 418]

As regards the sons born in America of such former German subjects who sojourn with their fathers, the envoy represents that the contemplated adoption of measures of expulsion against such persons would not be in harmony with the provision of Article I of the treaty of the year 1828, concluded between Prussia and the United States.

Provisions such as the one referred to are to be found in the majority of the treaties of amity and commerce now in force. But in the intercourse of the Empire with other states the view has been heretofore always and quite universally adhered to that by treaty provisions of this character the internationally recognized right of every state to remove foreigners from its territory when their further sojourn in the country appears to be undesirable, upon grounds of the welfare of the state, is not abolished.

This applies in a peculiar measure to the sons born in America of former German subjects when they live with their fathers permanently in Germany, participate like Germans in all arrangements for the protection and welfare of the subjects of the Empire, and only make use of their American citizenship to avoid the fulfillment of one of the most important duties of German subjects.

Continued toleration of such endeavors would necessarily lead to the formation within the Empire of a numerous group of population who illustrate by their example how it is possible, under the covering mantle of a foreign nationality, held by name only, to evade in a whole succession of generations the military duty imposed upon all.

In this connection the undersigned permits himself to point to the fact that His Majesty’s Government has, only after repeated consideration, and after overcoming many scruples which suggested themselves, decided to still recognize the American nationality of the sons in question of former subjects of the Empire, even, also, when their fathers have lost the citizenship acquired in the United States. For the recognition of such a relation is in conflict with the legal view underlying the legislation of the Empire, pursuant to which minor children, standing under paternal control, share the nationality of the father. In order, however, to pave the way for an amicable solution of the existing difficulties, the Government of His Majesty has suppressed the scruples, and has not hesitated to give expression to that recognition.

It will, therefore, be found the less surprising if this Government, on the other hand, cannot renounce the right nor withdraw from the duty of making provision against the injury to an important and just interest of the Empire that may possibly result from such accommodating action, by adopting measures of expulsion against the sons in question of former subjects of the Empire, under the conditions stated in the note of the foreign office of December 31 last.

While the undersigned submits the foregoing to the chargé d’affaires, in order that it may, if desired, be brought to the knowledge of the Government of the United States, he at the same time avails, &c.

[Inclosure 2 in No. 265.]

Mr. Kasson to Count Hatzfeldt.

The undersigned, envoy, &c., of the United States of America, has the honor to acknowledge the reception of the note of his excellency Count Hatzfeldt, imperial secretary of state for foreign affairs, &c., under date of the 16th instant, relating to the rights of the citizens and subjects of the respective nationalities who may be residing in the other country under the protection of existing treaties.

While recognizing the serious and intelligent consideration which his excellency has been pleased to give to the reclamations presented on the part of the Government of the United States, as well as the conciliatory tenor of his excellency’s note, the undersigned deems it his duty, in view of the importance of the questions involved, to reserve the contents of the note referred to for further appreciation of his Government.

With the reserve of such further communication from this legation as may be required, the undersigned seizes with pleasure this final occasion before his departure to renew to his excellency Count Von Hatzfeldt the very sincere assurance of his most distinguished consideration.