No. 299.
Mr. Kasson to Mr.
Bayard.
Legation of
the United States,
Berlin, May 19, 1885.
(Received June 8.)
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.
Foreign
Office, Berlin,
May 16, 1885.
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.
Legation of the United States,
Berlin, May 18,
1885.
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.
