No. 308.

Mr. Bayard to Mr. Pendleton .

No. 80.]

Sir: I herewith inclose to you a copy of a report of the Solicitor of this Department upon the interpretation to be given to the fourth article of the treaty between the United States and the North German Confederation, and especially to that clause of the article which provides that intent not to return to the country of adoption may be held to exist when the person naturalized in the one country resides more than two years in the other country.

I am, &c.,

[Inclosure in No. 80.]

Report of the Law Officer of the Department of State.

Sir: In the treaty between the United States and the North German Confederation, the fourth article provides as follows:

“If a German naturalized in America renews his residence in North Germany, without the intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally, if an American naturalized in North Germany renews his residence in the United States without the intent to return to North Germany he shall be held to have renounced his naturalization in North Germany. The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.

An important question has been referred to me which involves the lines underscored in the above article. The question is this: Is the residing for more than two years by a person naturalized in his country of origin an irrebuttable proof of an intention not to return to the naturalizing country?

As the same question arises under the treaties with Baden, Bavaria, Hesse-Darmstadt, and Wurtemberg, I propose, in response to the inquiries put to me, to give it a detailed examination. In doing so I beg to state that I have given careful consideration to the excellent report from Mr. Deuster, of the Foreign Affairs Committee of the House of Representatives, submitted on the 17th of February, 1885.

No legislation, however, took place in conformity with the recommendations of this report, and I am obliged to consider the question irrespective of any prescription of the law-making power. The question, I would also beg to say, is one that arises constantly in the municipal jurisdiction both of Germany and the United States. The position that I now propose to take has been accepted as authoritative in both [Page 439] countries. This position is, that a statutory permission to make a particular mode of proof of a contested fact admissible, does not exclude other modes of proof; and that when the statutory proof is produced it is, unless otherwise prescribed in the statutes, as much open to rebuttal as are other modes of proof. This position I now proceed to illustrate from our own jurisprudence, remarking that the same position is taken by German authorities on the law of evidence.

I notice, in the first place, statutes permitting depositions to be read in certain classes of cases in which, in common law, they would not be admissible. Those statutes usually run in the same words as those underscored in the article before us. They provide that such proof may be received. No one ever pretended that the enactment of such a statute makes the depositions so provided for the exclusive mode of proof of the litigated facts, nor that the facts they state are irrebuttable.
Another illustration may be found in the statutes providing that exemplification of deeds may be received in evidence. Here, again, no one would question that the original deed would be admissible, or that the existence or efficacy of such an exemplification could not be impeached on grounds of fraud or non-execution.
A third illustration may be found in the statutes which provide that the statutes of foreign States may be proved from the printed statute books. Here, again, it has always been conceded that such a statute does not exclude other proof of foreign statutes, and that the evidence which statutes are supposed to give may be rebutted.

I now proceed to take up more particularly the question whether statutes providing that intent may be proved in a particular way prescribe such way as exclusive and irrebuttable. We have numerous statutes of this class in this country, and similar statutes or judicial rulings are to be found in German jurisprudence.

I notice, in particular, so far as this country is concerned, the following illustrations:

Statutes which prescribe that having in possession counterfeit coin in quantities may be proof that such coin is held for illegal purposes. Now, we have numerous decisions from our courts to the effect, on the one side, that such proof is not exclusive pr of of intent, and that on the other side, when offered, it is rebuttable.
Statutes have also been enacted in several States providing that carrying dangerous weapons about the person may be presumed to be for an illegal object. Now, in no case under such statutes would it be maintained that so carrying such weapons is the sole proof of intent, or that such proof, when admitted, cannot be rebutted.
We may also turn to the statutes prescribing that having illicit or contraband goods in possession shall be regarded as proof of an intention to dispose of such goods in violation of law. Very many statutes of this class have been passed in reference to the sale of intoxicating liquors, and similar statutes have been adopted as part of the revenue system of the United States. Here, again, it would not be pretended either that the possession of the illicit or contraband articles is the sole proof of the illegal intent, or that when such proof is offered it could not be rebutted.
The fourth illustration may be found in the recent statutes adopted in England and the United States, providing that parties may be witnesses in their own cases, coupling these statutes with the judicial interpretation assigned to them, that parties, when their intent is disputed, may prove what that intent was. No one in this country would have the audacity to maintain that such statutes preclude any other proof of intent than that which the parties themselves should give, and that the evidence of the parties when given should be irrebuttable.

The North German code provides also for numerous cases in which parties may be admissible. Yet nothing is more remarkable in German jurisprudence than the elaborate energy with which, in cases of all classes, extrinsic facts are appealed to for the purpose of giving a supplementary proof to the testimony of parties, or of controverting such testimony by contradictory proof.

I therefore maintain that, even though the treaty had prescribed peremptorily, that when a person naturalized in the one country resides more than two years in the other country, the intent not to return is to be held to exist, this would not exclude other proof of an intent not to return, nor would it be insusceptible of rebuttal by proof that he did intend to return. Our courts have frequently so held when construing statutes providing that intent or other litigated facts are to be proved in a particular way. But the treaty contains no such peremptory direction. It does not say that the intent not to return shall be held to exist, but it says the intent not to return may be held to exist.

It is clear, therefore, that this method of proof of the animus manendi is not the only mode by which such animus manendi may be proved. It would be perfectly competent for a German by birth, who had been naturalized in the United States, to renounce his naturalized allegiance in one week after his return to Germany. It would be perfectly competent for the German Government in such cases, or in cases in which the returned subject had remained over two years in Germany to offer other proof besides that of the remaining, to prove that he had intended to resume his allegiance of birth.

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And, on the other hand, it would be perfectly competent for such a citizen, either before or after the two years had elapsed, to say that it was his intention not to remain in Germany, but to return to the United States. The question, it will be observed, is closely related to that of domicile. No matter how long a resident in a particular country has remained there, his domicile is in the country of his origin, if he intends to return to it as his final home. No matter how short a time an emigrant may be in the country to which he emigrates, his domicile is established there if he intends permanently to remain.

For the construction that is here given to the treaty two arguments drawn from the condition of things as presented to the negotiators may be here adduced.

(1) It can hardly be supposed that Germany intended to repel from her soil the multitude of naturalized citizens of the United States, who, born in Germany, desire to return and reside there for periods exceeding two years.

I will take as an illustration of this Germans naturalized in the United States who go to Germany for literary and business purposes. Many of these persons require a residence of over two years in Germany to effect their object, and it is most unlikely that the negotiators intended to exclude from Germany men such as these, whose presence in matters of literature might adorn, and in matters of business might benefit the country of their temporary residence. It is well known that the selling agents of many great manufacturers and producers, both in Germany and the United States, are in the habit of remaining often over a period much greater than two years in the place of their agency, and it cannot be questioned that the continual presence of such agents, retaining as they do their allegiance to the country from which they are sent, is greatly conducive to the business prosperity of the country in which their agency is executed. Yet the clause before us would preclude inexorably a stay of such agents beyond the period of two years. And even a more striking instance of the improbability of the construction I here contest is to be found in the case of the children of German parents naturalized in the United States, when such children go to Germany for education. Several thousand students from the United States are said at present to be in Germany. A large proportion of these are children of Germans naturalized in the United States. No thorough course of education in Germany could be obtained if the limit of study be two years. The benefits of such thorough course of study both to Germany and the United States cannot be disputed, and it is still less open to dispute that there are multitudes of German parents, who, though naturalized in and truly loyal to the United States, are attached to the literature of their native land and to its system of education and discipline and who desire that their children should, have the advantages of German educational institutions. It is hardly to be supposed that the negotiators of this treaty intended to put a stop to the enjoyment of such advantages by the children of naturalized Germans when they are open to the children of citizens of the United States by birth. It is not likely that the German negotiators of the treaty in particular would in this as well as in the other cases have discriminated so seriously against their own country.

(2) A final objection to this construction to which I now turn has already been taken by the American minister at Berlin. If at the expiration of two years’ residence in Germany, a German naturalized in the United States loses his American nationality, he becomes without any nationality whatsoever, so far as the treaty is concerned, since by the treaty there is no provision made for the resumption of his German nationality. He would, therefore, be in the extraordinary condition of a person without any national ties or allegiance. That he should be allowed to resume his old nationality when he desires is not strange; but it would be very strange, if, without any such desire on his part or any action justifying it, he should thus, by the mere expiration of time, be absolutely deprived of any political status whatsoever.

In several treaties that have been negotiated by the United States on this topic it is provided that the presumption of intent drawn from a residence of over two years should be open to rebuttal. Perhaps, as a matter of excessive caution, it might be desirable to adopt an article additional to the treaty before us, providing that a two years’ residence in the country of origin should only be regarded as prima facie proof of renunciation of American naturalization, such proof to be open to corroboration on the one side and to rebuttal on the other side; but it should be clearly understood that this is done without in any way waiving the position that this incident of rebuttability belongs to the clause before us as it stands in the treaty.

All of which is respectfully submitted.

Law Officer.