No. 272.
Mr. Bayard
to Mr. Pendleton.
Washington, March 12, 1886.
Sir: I have received your No. 191, of the 8th ultimo, inclosing copy of a note of the 3d ultimo from Count Bismarck, which confirms the orders of expulsion from Germany previously issued against Karl S. [Page 370] Petersen, Christian N. Hansen, and Lars Hoeck, and deferred on account of your protest. As these appear to be fair examples of the numerous expulsions which have occurred of late, I propose now to give you the views of this Department on the question of the interpretation of the Bancroft treaty of 1868, as applied to naturalized Americans returning on a visit to Germany.
The decisions of the foreign office given in your No. 191 do not appear to be consistent with those rendered in previous years in similar cases, although, as far as this Department is advised, the aspect of the cases of returning Americans has not essentially varied during the last two years 5 and it would seem as if there could be no more necessity of expulsion now than existed two years ago. The doctrine now laid down by the foreign office seems to embody two propositions. The German Government appears to claim, first, that any American, whether he be native or naturalized, may be expelled from Germany whenever, in the opinion of the authorities, the welfare of the state demands it; and, second, that a good and sufficient ground for such expulsion is to be found in the purpose on the part of an emigrant to avoid military duty by emigration, the sufficient proof of which purpose for the German Government is the fact that the emigrant demanded an official permit to leave his native land.
I will now examine these two points in turn.
The claim made by the German Government of a general right of expulsion raises the question of what rights of sojourn naturalized Americans have under the treaty of 1868. Article I of that treaty reads as follows:
Citizens of the North German Confederation, who have become naturalized citizens of the United States of America, and shall have resided uninterruptedly within the United States five years, shall be held by the North German Confederation to be American citizens, and shall be treated as such.
This appears to be the only sentence in the treaty relating to the status of naturalized American citizens pending the two-years’ stay which is referred to in the fourth article of the treaty, and we must, therefore, turn to our treaty with Prussia of 1828, which is still operative, for a definition of the status and treatment of American citizens. Article I of that treaty says:
There shall be between the territories of the high contracting parties a reciprocal liberty of commerce and navigation.
The inhabitants of their respective states shall mutually have liberty to enter the ports, places, and rivers of the territories of each party wherever foreign commerce is permitted. They 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 their submitting to the laws and ordinances there prevailing.
There would seem to be no question that under the concurrent effect of these two treaties, Americans, both native and naturalized, should have a free and equal right of peaceable sojourn in Germany if they submit to the laws.
I notice the statement of Count Bismarck in his note to you of the 6th of last January, inclosed in your No. 154, of January 18, 1886, and in reply to your note to him of December 24, 1885, that the provisions of the treaty of 1828 do not 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, and that the treaties of 1868 regulating nationality do not [Page 371] conflict with this, and that returning emigrants, even when recognized as naturalized Americans, may, when the accompanying circumstances require, be expelled like any other foreigner, but that on principle this right will be invoked only when maturely considered grounds of the public welfare compel. This opinion, which would seem to put our relations with Germany as regards naturalized Americans on exactly the same footing as they were before the Bancroft treaty of 1868, and to open the door to the same endless and unsatisfactory discussions as then took place, does not, therefore, meet with the assent of this Government.
I notice also in this connection that in your No. 110, of the 16th November, 1885, you transmit a decision of the Austrian foreign office acknowledging the right of the German Government to expel Austrian subjects at its pleasure, in spite of existing commercial treaties. But the mutual, political, and geographical and commercial relations of those two nations are so totally different from those which either of them have with the United States, that no valuable deductions applicable to ourselves can be drawn from that statement.
The only question which it seems to this Government can be raised as to the right of Americans under our two treaties to remain in Germany would be of how long a period of time is covered by that right in the case of naturalized Americans; and, to decide this, reference to the fourth clause of the treaty of 1868 is necessary.
Now, it would seem to be impossible to apply the prima facie test of an intent to renounce American citizenship as provided for in the last clause of that article, namely, a residence in Germany of over two years, if the returning emigrant is liable to be expelled, as is now proposed, before the expiration of the two years, and no right is reserved in the treaty to the German Government to decide what period less than two years is sufficient, as Count Bismarck intimates, to attend to their affairs. This intent to renounce American nationality may, it is true, be expressed in some other way than a stay of over two years, and this not infrequently is the case, as is shown by dispatches from your legation reporting cases of deliberate and voluntary resumption of German allegiance on the part of naturalized Americans returning to their native land; but this Government contends that in the absence of any such voluntary and express manifestation of intent to renounce American citizenship, our citizens can, under the treaty of 1868, claim recognition of their status and all rights of sojourn pertaining thereto during the first two years following their arrival in Germany. The two Governments interpreted the treaty in this sense soon after its adoption, as is shown by the correspondence in your legation, and by that authoritative interpretation this Government thinks both are bound.
If such is not the ease it is difficult to see what advantages are derived by our naturalized citizens from that treaty, and in what respect they are differently situated from those of other nations who we know are not entitled to further protection by their own Government on returning to Germany after their naturalization than would be secured by an ordinary traveler’s passport.
That the intention of the German Government at the time of the signing of the treaty coincided with the views of this Government, as above expressed, appears clearly from the words of the decrees from the ministries of justice and the interior issued on the 6th of July, 1868, to all royal courts of appeal, supreme courts, state attorneys-general; to all the governments of the monarchy; to the chief president at Hanover, [Page 372] and to the presidency of police in Berlin, for their guidance and distribution. These provide—
That the punishment incurred by punishable emigration is not to be brought into execution on occasion of a return of the emigrant to his original country if the returning emigrant has obtained naturalization in the other country, in conformity to the first article of the said treaty. Also:
In conformity to Article 2 of this treaty, the punishable action committed by the unauthorized emigration of a citizen of the United States of America should not be made the ground of a penal prosecution upon the return of such person to his former country after absence of not less than five years, etc.
The royal Government is therefore instructed in such cases to abstain from recommending trial and punishment, and in general from every kind of prosecution whenever the person in question is able to produce proof that he has become a naturalized citizen of the United States of America in conformity with the first clause of article I.
Yet, notwithstanding these edicts, the proceedings and sentences against returning Americans appear to emanate from the local authorities in disregard of their instructions “to report officially the remission by way of grace of the declared punishments and costs,” the possibility of condemnation and execution of the penalties not being apparently in any case contemplated by these decrees. These orders are entirely pertinent to the present discussion, although they may be admitted to have more especial reference to military fines for non-performance of military duty, with a term of imprisonment in default of payment, the greater number of which are eventually repaid after the cases have been brought to the notice of the foreign office by your legation. The correspondence in none of the cases of expulsion discloses that the central Government in Berlin was furnished with any such reports for remission of punishment until called for by request of the legation. It may be that some of the sentences are issued from the military courts and authorities which are apparently not included among the officials addressed in the decrees; but in many of the cases, as, for instance, that of S. M. Boyson and others in the Island of Fohr, Schleswig-Holstein, the order of expulsion was issued from the royal Landrath at Tondern, and it allowed only three weeks’ time for preparation to the emigrant, a married man with five children, who had left the country at the age of 17, and had not the slightest intention of remaining permanently in Germany.
Surely such a case as this was deserving of a report by way of remission of punishment, and certainly peremptory expulsion at three weeks? notice may be fairly included under the term “in general from every kind of prosecution,” for expulsion is evidently a worse punishment than the ordinary fine, after the emigrant has incurred all the expense of a return to his native land, under the supposed protection of a treaty to remain there undisturbed for at least two years. In the case of Peter Jepsen, from the same province, the notification that he must leave the country within four weeks was issued by the chief of police of the district, the official (Hardesvogt) even refusing, according to Jepsen’s statement, to issue the order of expulsion in writing. The hardship of the thirteen cases of expulsion from Schleswig-Holstein was aggravated by the fact that the characters of several of the individuals as law-abiding and orderly citizens were all testified to by an official (Ortsvorstand) of the district, and that all of them had originally received permission to emigrate.
This brings me to the second point made by the German Government for its refusal to rescind the orders of the local authorities, namely, that the application or request of these young men of sixteen years for permission to emigrate before attaining the age of military liability appears to justify the assumption that in seeking the discharge from Prussian allegiance, which the application apparently involved, they were actuated [Page 373] solely by the purpose of withdrawing themselves from the performance of the general military duty in Prussia.
The minister of the interior on the 6th July, 1868, in his circular says:
In concluding the treaty of the 22d February of this year between the North Gorman Confederation and the United States of America it was the prevailing intention that in conformity to art. 2 of this treaty the punishable action committed by the unauthorized emigration of a citizen of the Confederation to the United States of America should not be made the ground for a penal prosecution upon the return of such person to his former country after absence of not less than five years, and that the punishment for such action, even though already declared, should not be consummated if the person has acquired in America the right of citizenship in conformity to Article I of said treaty.
The circular of the minister of justice is to the same effect, and in almost the same words. It seems to be a self condemned proposition, whose refutation is contained in its statement that, if the punishment for unauthorized emigration was in every case to be remitted, authorized emigration was to be a punishable offense, and yet this is what the German Government asserts.
Nor is it apparently quite logical to state (see Count Bismarck’s note of December 21, 1885, transmitted in your No. 142) that the discharge from Prussian nationality could not lawfully be refused in time of peace to persons who have not yet reached the age of military liability (that is, the completion of the seventeenth year), and yet to say: “The assumption seems therefore to be well founded that the persons in question (ail under seventeen) sought discharge from their native allegiance, and emigrated to the United States only for the purpose of withdrawing themselves from all performance of military duty in Germany, and the same purpose must be assumed in the cases of H. P. Jessen, H. F. N. Rohlffs, and C. H. E. Rohlffs (though these three were over seventeen years of age, and therefore might have been refused permission),” because these three persons emigrated to the United States after attaining the military age, without permission, and without having responded to the duty of presenting themselves for military service.”
If discharge from military obligation is a necessary result and inseparable from a permit to emigrate, how is the emigrant, in asking for the latter, to avoid asking for the former? And if the man emigrating with permission is to be held guilty of evading military duty, and the man emigrating without permission is held to evade military duty, it is difficult to see how any one can innocently emigrate or safely return.
This Government has always in its consideration of these cases proceeded upon the supposition, which has thus far not been contradicted by the foreign office, that the military liability, the avoidance of which was culpable and punishable, did not begin until the age of military service, which is given in the German constitution as the completion of the twentieth year, and when a recruit is sworn into the service under the flag and assigned to a regiment. A disregard of this liability is understood to be desertion, and as such never defended by this Government.
But whatever may be the age of military liability, the circular* of the minister of justice, issued in pursuance of the treaty, says, “The punishment incurred by punishable emigration is not to be brought into execution on the return of an emigrant who has obtained naturalization in the other country,” and this decision is given in execution of the treaty in which no distinction is made between those who emigrate before or after the age of [Page 374] military liability, excepting only those persons referred to in Article 2 understood to be deserters.
It seems unreasonable on the part of the German Government to grant a request to emigrate which carries with it necessarily a release from military duty whether the applicant asks for such release or not, and then years after this permission has been availed of to violate and invalidate its own permit, and impute motives to the emigrant which could have had no effect when applying for the permit, inasmuch as the authorities are obliged by law to grant it. But there surely ought to be a just and reasonable distinction drawn between the acts and intent of a mere lad of sixteen emigrating, and usually in obedience to his parents, and those of a young man of twenty who may have received his summons to appear, and hastens to escape from the country in order to evade its laws. Out of the thirteen persons expelled from Schleswig-Holstein since the 1st December, 1885, eleven were under eighteen years of age, and nine, who were under seventeen, had permits to emigrate.
The complaint by the German authorities has appeared heretofore to be not so much of the fact of emigration, whether with or without permission, as of the return to Germany after naturalization and by acts and words inciting the embryo recruits in their native villages to discontent and emigration.
But even as regards this species of offense, which is more legitimate in its basis than the one alleged in the Schleswig-Holstein cases, great allowance should be made for the difference in popular habits and customs between America and Germany. In this country the emigrant travels freely and frequently. The sedate German becomes more active and migratory, and his proverbial and innate love for his father-land naturally tempts him on acquiring his new nationality to return as often as possible to the home of his childhood from which he has been long absent. It was in contemplation of and to meet this feeling and this necessity, which it would be unwise and contrary to the instincts of humanity to ignore, that the treaty was made. The returning emigrants do not enter Germany as Germans seeking to evade military service, but as American citizens carrying the proofs of their naturalization as required by the treaty, and generally with a passport recognizing them as American citizens, and claiming for them protection as such. How much more favorably then should their cases be considered when they hold a discharge by German authority from their original military obligations, and a permit to emigrate to foreign lands.
This Government considers that it has a right to ask that these passports and naturalization certificates shall be respected by the Gorman authorities, and that the right to unmolested sojourn of returning naturalized German-Americans whose papers are evidence that they have complied with the United States laws and the provisions of the treaty of 1868 in regard to change of nationality, shall be acknowledged and respected, and that if a continuous residence in Germany of two years may be held to imply a renunciation of American allegiance no such implication shall arise in any shorter period, excepting in cases where the intent to reassume German nationality shall have been expressed explicitly by the returning emigrant. Consequently, during the said stipulated period of two years the naturalized American is entitled to protection from molestation or expulsion as long as he submits himself to the laws of Germany. The recent course of Germany in expelling a number of naturalized American citizens, whose quiet and inoffensive character was officially testified to, is considered contrary to treaty provisions, and as affecting the rights of a large class of our citizens who [Page 375] are not included in the special exceptions stipulated for in Article 3 of the treaty of 1868 regarding criminals and fugitives from justice.
You are therefore instructed to present these views to the German Government, requesting at the same time that it will reconsider its decision in the recent cases of expulsion and which I must believe to have been inadvertently made in the light of the above recitals. The general doctrine of the right of a nation to expel obnoxious foreigners, whose presence is dangerous to its peace and welfare, from its shores, is well known to this Government, and by none more readily acknowledged, but this right was not lost sight of in framing the treaty of 1868, and while the right is admitted, yet its particular application as regards naturalized Americans is considered in and limited by that treaty.
You may read this instruction to the minister of foreign affairs and furnish him with a copy of the same for his information.
I am, sir, etc.,