Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888
Mr. Pendleton to Mr. Bayard
Berlin , April 16, 1886. (Received May 3.)
Sir: I have received from the Imperial foreign office the note dated April 4, 1886, in reference to the case of Knud Nielsen Knudsen, of which I inclose copy and translation, a copy of my note of intervention having been transmitted to the Department with my dispatch* No. 214, of the 23d ultimo.
It seemed to me that the time and occasion were opportune to present in very definite form the views contained in your instruction No. 106, of the substance of which I had made a statement to Count Bismarck in a conversation of an earlier date. Accordingly, I prepared the note to the foreign office of April 10, 1886, of which I also inclose a copy, and sent it with a copy of your No. 106. I hope my note and action will meet your approval.
I have, etc.,
Count Bismarck to Mr. Pendleton .
The undersigned does himself the honor to inform Mr. George H. Pendleton, the envoy extraordinary and minister plenipotentiary of the United States of America, at the same time that he returns the inclosure of the note of the 8th of the past month, concerning the expulsion from the Prussian territory of the American citizen Knud Nielsen Knudsen, temporarily sojourning at Apterp, that the inquiries which have been made show the following:
The said Knudsen in the year 1875 prayed release from allegianoe as a Prussian subject for the purpose of emigrating to America. As he was then little more than sixteen years old, and consequently the certificate from the recruiting commission prescribed (§ 15 of section 2, No. 1, of the imperial law concerning the acquisition and loss of imperial and state citizenship, R. G. B., 1870, S.355, ff.) needed not to be produced by him, his request had to be granted. The release, prepared on the 9th November, [Page 376] 1875, was immediately thereafter handed to Mm, It was, however, afterwards declared null and recalled, according to the provision of section 18 of said law, because the said Knudsen had not within six months, counting from the delivery of the release, removed his residence outside the territory of the Empire, but instead remained until the autumn of 1887 in Borrig, Kreis Tondern.
At the beginning of his proposal for a release the authorities were scarcely in doubt that Knudsen’s only purpose was to withdraw himself from the performance of military duty in Prussia. Obviously, with this view, he did afterwards withdraw himself from his home in 1878, and betake himself to the United States of America.
Since, after his return to his home on the 28th of December of last year, he has been allowed to remain for more than three months in the house of his parents, the order of expulsion against Knudsen, based on the general grounds developed by the undersigned in his former communication, must now be put into execution.
The undersigned takes advantage, etc.,
Mr. Pendleton to Count Bismarck .
Berlin , April 10, 1886.
The undersigned, envoy, etc., of the United States of America, has the honor to acknowledge the receipt of the esteemed note, under date of the 4th instant, of Count Bismarck-Schonhausen, undersecretary of state in charge of the Imperial foreign office, in relation to the threatened expulsion of the citizen of the United States now temporarily sojourning at Apterp, Knud Nielsen Knudsen, and respectfully begs the indulgence of Count Bismarck to submit some considerations in reference thereto.
The said esteemed note of Count Bismarck informs the undersigned, as the result of investigations made in the case, that the said Knudsen applied in the year 1875 for a release from Prussian allegiance in order that he might emigrate to America, which, as he was little more than sixteen years old, had, according to law, to be granted; that the release was prepared and immediately delivered to him, but was afterwards declared null and revoked because Knudsen had not within six months removed his residence outside of the imperial territory, but had rather remained in Borrig until the autumn of 1877; that, in the beginning of his application for a release from Prussian allegiance, the authorities had scarcely a doubt that Knudsen’s only purpose was to withdraw himself from the performance of military duty in Prussia, and that obviously with this view he afterwards withdrew from his home, and went to the United States in 1878; that he has been permitted to remain more than three months in the house of his parents, after his return to his home on December 26 of last year, and that now the decree of expulsion must be executed on the general grounds developed in the former communication of Count Bismarck.
By way of supplement to the foregoing statements the undersigned permits himself to add, as he has before stated, that Knudsen was naturalized in the United States, and, after having resided there for the full term of seven years and three months, returned to Germany; that he desired to remain in Germany only until the 11th day of April, 1886, in order that his sister, who was to accompany him to America, might receive her confirmation. There is no reason to believe that he desires to prolong his stay beyond that period, or for any other purpose. The declaration of the nullity of the discharge from allegiance and the revocation of the same are certainly in accordance with the imperial lasteited by Count Bismarck; but the undersigned is not aware that such revocation entails any injurious consequences upon Knudsen, except only the loss of the express permission to emigrate; and therefore Knudsen must be considered as having emigrated without permission at the age of nineteen without having been before his emigration specially called into military service or assigned in such wise to military duty, that his unauthorized emigration could be considered as desertion or punishable.
It has become an established rule of interpretation of the second article of the treaty regulating nationality, of February 22, 1868, between the North German Confederation and the United States, now adhered to without exception, that unauthorized emigration is not punishable on the return of the emigrant to his original country if he has obtained naturalization in the other country, except in case of actual technical desertion. Therefore Knudsen is to-day a returned naturalized citizen of the United States, who has resided more than seven years there, and who has been guilty of no act in contravention of or punishable by, the laws of Prussia.
A series of well considered cases, extending from the time of the mission of my honored predecessor, Mr. George Bancroft, the negotiator of the above-named treaty, to [Page 377] wit, from 1875 down to and including the period when my immediate predecessor, Mr. John A. Kasson, had charge of this legation in 1885, has interpreted the third clause of the fourth article of the treaty to mean that a naturalized citizen of the United States, having resided there five years, returning to Germany shall have a right of uninterrupted sojourn in the last-named country for the period of two years, provided he obeys the laws thereof. The gentleman in charge of the imperial foreign office yielded an assent to this interpretation as often as it was asserted by the envoys of the United States. The undersigned would willingly point out the several cases to which lie refers, but he is satisfied that these records of the diplomatic correspondence are very familiar to Count Bismarck. He permits himself, however, to mention the cases of Solomon Moritz Stern in 1876 of Ellis Block in 1878, of Edmond Klein in 1879, of Art A. Eorden in 1880, of Lazard Eosenwald in 1880, of Jurgen I. Grau in 1883–’83, and the correspondence connected therewith, among many others of a similar tenor. The argument on which this conclusion was reached need not now be discussed. It was entirely conclusive to the officials of the two Governments, and the result they reached seems to be no longer an open question.
As a reason for not applying this well-settled interpretation of the treaty to the case of Knudsen, Count Bismarck says in the above-mentioned esteemed note that, on the general grounds developed by him in former communications, the measure of expulsion must now be executed after a sojourn of more than three months in the house of his parents has been permitted to Knudsen. The undersigned, understands these former communications to be the notes of Count Bismarck of December 21, 1885, and of January 6, 1886. The note of December 21, 1885, says (the undersigned quotes only that he may not possibly unintentionally misrepresent:)
“The assumption seems therefore well founded that the persons in question sought discharge from their native allegiance and emigrated to the United States only for the purpose of withdrawing themselves from the performance of military duty in Germany. This same purpose must be assumed in the cases of: (7) Hans Peter Jessen (note of the 9th ultimo, foreign office, No. 116); (8) Heinrich Friedrich Nikolaus Rohlffs (note of the 13th ultimo, foreign office, No. 124) and (9) Constantino Heinrich Edward Rohllfs, (note of the 13th ultimo, foreign office, 123).
“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. * * * Should a further sojourn, and one for an indefinite period, such as they desire, be permitted them, a furtherance would thereby be afforded to the purpose of those persons, manifestly aiming at evasion of the performance of military duty, which does not appear to be in accord with the interests of the state and the public order.”
And the note of January 6, 1886, after quoting the substance of the former note, adds:
“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.”
It is not asserted that Knudsen has violated any law or committed any breach of the peace, or order of the community, or that he has by word or deed, by persuasion or example, sought to mislead, or to excite discontent among the people with whom he associated. This would seem, therefore, to be a case in which would apply with special force the instruction given by the royal Prussian minister of the interior to the authorities of the Royal Government, “to abstain from recommending trial and punishment, and in general from every kind of prosecution.”
The undersigned respectfully calls the attention of Count Bismarck to the decree issued by the royal Prussian minister of justice July 5, 1868, and to the decree issued by the royal Prussian minister of the interior July 6, 1868. They are an authoritative interpretation on the part of the German Government of the provisions and intent of the treaty of 1868. The first “expressly declares that it was the prevailing intention” that, in conformity to the second article of that treaty, the punishment incurred by punishable emigration is not to be brought to 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.
“In consideration whereof, in every case where legally valid condemnation of this kind exists against such persons, an official report is to be made to the minister of justice respecting the remission of the declared punishments and costs by way of grace.”
And the second of the above-named decrees declares that it was the prevailing intention—
“That in conformity to Article 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 [Page 378] such person to his former country after absence of not less than five years, and that the punishment for such action, even though already legally declared, should not be consummated if the person has acquired in America the right of citizenship in conformity to Article 1 of said treaty.
“The Royal Government is therefore instructed in the cases indicated to abstain from recommending trial and punishment, and in general from every hind of prosecution, whenever the person in question is able to produce the proof that he has become a naturalized citizen of the United States of America, in conformity with the first clause of Article I.”
The undersigned therefore submits that the act of emigration by Knudsen was not an offense against the laws of Prussia; that the officials were directed to abstain from recommending trial and punishment and every kind of prosecution against him; that, indeed, by virtue of the treaty and these decrees, the emigration was expressly permitted. The intention with which he emigrated, the mental process by which he was brought to a decision, in no wise impaired the lawfulness of the emigration. So, also, the return to his native country of the emigrant as a naturalized citizen of the other country, after a five years’ sojourn therein, is expressly permitted and provided for by the treaty. The emigration is permitted, the return is permitted the sojourn is permitted. How, then, can the recognition of these three permitted events be a furtherance of a reprehensible desire to evade military service. The very act of emigrating involves the avoidance of military duty. There can be no emigration before the extreme limit of age at which the subject may be called on, which does not involve such avoidance.
If there shall be no emigration which involves such avoidance, that is simply to say there shall be no emigration at all before such old age. If the recognition of the right of emigration is an improper furtherance of the escape from military service, that is simply to say there shall be no recognition of the right of emigration. Emigration is the event; the escape from military service is the subordinate, even though inseparable, incident. The emigration is lawful; the consequent avoidance of military service is quoad 7toclawful. To describe the recognition of the rights of emigration, and return, and sojourn, each guarantied by the treaty, as an encouragement on the part of the authorities of the effort to escape military service and to bring the laws into disrespect, seems to be inadmissible. But if it were admissible, can it be that an emigrant may be subjected to a curtailment of his treaty right of sojourn simply because the exercise of his admittedly lawful rights is deemed by one of the parties to that treaty to constitute an inconvenience, in this, that it puts that party in the attitude at home of furthering avoidance of military duty? Was not such furtherance afforded, if at all, at the time of negotiating the treaty?
The performance by the emigrant of acts which are separately permitted and sanctioned by the German Government, to wit, emigration, return, and sojourn, cannot, when they are combined, give him a quality which, in the absence of any offensive conduct, is dangerous to the State, and thus justify an exception to the rule of two years’ residence. No German-born naturalized citizen of the United States can sojourn for any length of time in Germany if the facts of emigration and return are to be considered as proof that the emigration was merely from a desire to avoid the performance of military duty, and such desire renders the person dangerous to the state, and therefore justifies expulsion. If all a man’s acts are lawful, his motives, his desires can not be the subject of animadversion; they become important only when the acts themselves are unlawful.
In truth, the desire to avoid military service as an inducement to emigration is not a fact of which the treaty takes any cognizance. It does not invalidate the bona fides of the emigration or of the return, nor lend a quality to the person affecting, in any sense, his relation to the state. To better one’s condition is always the inducement to emigration. It may be believed that intending emigrants would hold exemption from a long military service, in times peace as well as of war, to be one of the incidents which contribute to the general bettering of their condition.
Count Bismarck will not do the undersigned the injustice to suppose him guilty of the indiscretion of discussing, or even questioning in this paper the wisdom of any of the institutions of the German polity. Such an impropriety he urgently disclaims. He is speaking only of the concurring inducements which influence honest, upright men to leave their homes and friends to establish themselves in another country, and which might apply as well in inducing Germans to go to one of the colonies of Germany as to the United States.
The undersigned is quite aware that Count Bismarck, in his note of January 6, 1886, says that these expulsions are not by way of punishment, but lest a “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.”
Still the question recurs, How can these three “acts, all sanctioned expressly in solemn treaties and decrees by the Prussian Government, constitute” in the persons [Page 379] performing them a quality dangerous to the state; how can the person who performs them he expelled without punishing him for having done one or all of the permitted acts? And, in fact, no punishment is more severe to a returning German than to expel him from his fatherland, to which his affections make him yearn to return for the sight of his old home, as a person dangerous to its welfare and unfit to visit it.
It is very true that Count Bismarck says repeatedly, and with great consideration, that this right of expulsion will he exercised with moderation, and only on occasions of imperative necessity. For this assurance the undersigned is duly appreciative, hut he can not avoid saying that this is a question of right under treaty stipulations, and not of grace and favor, however kindly and constantly exercised.
The undersigned feels at liberty to address Count Bismarck at such great length on this subject, because, so far as his researches in the correspondence enable him to judge, the views he is combating are put forth and insisted upon now, in these late cases from Schleswig-Holstein, for the first time, and involve a change in the course hitherto pursued.
The undersigned is instructed by his Government to bring these views to the attention of Count Bismarck, and to ask that they may have due weight in the further consideration of the case of Knudsen. He at the same time asks the consent of Count Bismarck to avail himself of the permission of his Government to submit a copy of the instruction which he has lately received, containing at length the views of the Government of the United States on these questions so interesting to its very many valuable citizens of German origin, who, by their virtues, have in a new home done honor to their race and to their fatherland, and in whom that fatherland must feel an honorable pride.
This case of Knudsen seems to stand upon the same ground as the others from Schleswig-Holstein, particularly referred to in that instruction, and therefore the undersigned ventures to ask in this note that the adverse decisions in those cases may be reviewed, as he is required to do by his Government, and gladly avails himself, etc.,