No. 152.
Mr. Pendleton to Mr. Bayard.
Legation of
the United States,
Berlin
,
January 8, 1886.
(Received January 25.)
No. 154.]
Sir: I hasten to send the inclosed note and
translation which I received from Count Bismarck. It is in response to my
note (foreign office, No. 143), dated December 24, 1885, of which I sent
copy in my dispatch No. 142 of December 25, 1885. No new position is taken
therein. The insistance is on the right of every nation to expel those whom
it may deem detrimental to its order and safety; that in this case no
limitation is imposed by either the commercial treaty of 1828 or the
Bancroft treaty of 1868, and that “the liability to perform military service
is one of the most essential and important foundations of our state life.”
So far as my researches have gone, it is the first time an argument is drawn
from the protocol attached to the treaty with Bavaria of May 26, 1868.
That treaty was negotiated by Mr. George Bancroft about two months after he
had concluded the treaty of February 22, 1868, and after its ratifications
had been exchanged, and is in all its important stipulations in the words of
the latter treaty. The protocol was signed simultaneously with the signature
of the treaty and is explanatory of its provisions.
The first clause of the article, III, certainly does provide that (the
underscoring is mine)—
The regulative powers granted to the two Governments respectively by
their laws for protection against resident aliens whose residence
endangers peace and order in the land are
not affected by the treaty. In particular the regulation contained
in the second clause of the tenth article of the Bavarian military
law of the 30th January, 1868, according to which Bavarians
emigrated from Bavaria before the fulfillment of their military duty
cannot be admitted to a permanent residence in the land till they
shall have become thirty-two years old, is not affected by the
treaty.
But it does also provide very significantly for the purpose of our case, if
the argument of the foreign office is to be held forcible, that—
It is established and agreed that, by the expression “permanent
residence “used in the said article, the above-described emigrants
are not forbidden to undertake a journey to Bavaria for a less period of time and for definite purposes, and
the Royal Bavarian Government moreover cheerfully declares itself
ready in all cases in which emigration has taken place in good faith to allow a mild rule in
practice to be adopted.
Doubtless the Prussian authorities would call attention to the words above
in good faith, and insist that emigration could
never be in good faith in the face of closely
impending military service. Whatever force this suggestion might have in any
particular case, or even in these now under consideration from the Island of
Föhr, it is very obvious that the non-fulfillment of military duty before
emigration cannot be held of itself to impeach the bona
fides of the emigration. The whole provision is based on the idea
that such emigration may be in good faith, or in bad faith, [Page 316] and this must be determined by other
circumstances than the antecedent non-performance of military duty.
But it is clearly worth while to consider whether the argument fairly
deducible does not make against the position of the foreign office.
If the protocol was necessary to give to the Bavarian treaty the
interpretation which is claimed, what effect shall the absence of a protocol
have, in the case of an antecedent treaty, with the North German
Confederation couched in the same words as the Bavarian treaty? Does the
protocol of the Bavarian treaty give authentic interpretation to the treaty
of the North German Confederation? Does not the protocol rather emphasize
the difference of meaning in that treaty alone, and in the treaty with the
protocol? * * *
I have, &c.,
[Inclosure in No.
154.—Translation.]
Count Bismarck to
Mr. Pendleton.
Foreign
Office
,
January 6,
1886.
The undersigned has had the honor to receive the note dated December 24
last, foreign office, No. 143, relating to the expulsion of several
American citizens from Prussia, of the envoy extraordinary and minister
plenipotentiary of the United States of America, Mr. Pendleton, and to
give to the statements contained in the same an attentive appreciation.
To his regret the undersigned is not able to adopt in all points the
views expressed by the envoy, and has only found it possible to request
the appropiate Royal Prussian authority to grant to Meinert Boysen
(Simon Meinert Boysen), who seemed worthy of special consideration,
permission to sojourn in Prussia until the beginning of next summer.
In the note of the undersigned of the 21st of December last, it was
already pointed out that the refusal of the permission in question was
based on the consideration of the particular circumstances under which
the nine persons concerned left their native land and have now returned
to it. The Prussian authorities are convinced that all of those persons
emigrated solely for the purpose of withdrawing themselves from the
performance of military duty. If such persons were permitted, after they
have acquired American citizenship, and while appealing to this change
of nationality, to sojourn again, according to their pleasure,
unhindered, for a shorter or longer period, in their native land,
furtherance would thereby be given to similar endeavors, and respect for
those laws would be endangered upon which is based the general liability
to military service, one of the most essential and important foundations
of our state life. Solely on this account, and not as a sort of
punishment for evasion of military duty, has the expulsion of those
persons been decreed, after a period of sojourn amply sufficient under
the circumstances had been accorded them.
The envoy has advanced the question whether the right of the Prussian
Government to expel American citizens has not been restricted by the
treaty regulating nationality of the year 1868, and earlier by the
treaty of commerce and navigation, of May 1, 1828, between Prussia and
the United States. So far as the last-named treaty is concerned,
considering it first, Article I of the same provides that the citizens
of either state shall be at liberty to sojourn in the territory of the
other state, in order to attend to their affairs there, and that they
shall enjoy for that purpose the same protection as the citizens of the
country wherein they reside, on condition of their submitting to the
laws and ordinances there prevailing.
Heretofore the foreign office has pointed out, in the note of Count
Hatzfeldt of May 16 last, that, in conformity with the view heretofore
generally entertained in intercourse between the Empire and Prussia and
other states, and contested from no quarter, provisions of this
character by no means conflict with the right of every independent state
to expel foreigners from its territory when such course is considered
requisite upon grounds of the welfare of the state or of the public
order.
Nor do the treaties regulating nationality of the year 1868 conflict with
the exercise of this right.
Under Figure III, No. 1, of the final protocol of the Bavarian-American
treaty, which agrees in all essential points with the treaty between the
North German Confederation and the United States, this is distinctly
recognized, and thereby the North German-American treaty, concluded at
an earlier date, has, in a certain manner, received [Page 317] an authentic interpretation. Germans
naturalized in America, who have resided five years in the United
States, are, it is true, in accordance therewith to he regarded as
Americans, and are also to be treated as such in case of their return to
Germany, in so far as they have not, in accordance with Article IV of
the treaties, renounced the naturalization acquired in the United
States. They may, however, nevertheless, when the accompanying
circumstances require, be expelled like any other foreigner. On
principle this right will be considered only when maturely-considered
grounds of the public welfare compel.
The envoy may rest assured that the Royal Prussian Government has been
actuated solely by considerations of this character in the action it has
taken with respect to the persons in question.
The undersigned avails, &c.,
