No. 274.
Mr. Pendleton to Mr. Bayard.
Berlin, January 13, 1887. (Received February 1.)
Sir: I have to acknowledge the receipt, on the 9th instant, of your instruction No. 176, of December 17, 1886, covering the copy and translation of a note of July 8, 1886, from Mr. von Alvensleben, the German minister at Washington, concerning the expulsion of naturalized American citizens from Germany. Mr. von Alvensleben acknowledges the receipt by the foreign office here of my two notes of the 10th and 16th April, 1886, in reference to the cases of Knudsen and Burmeister, and of a copy of the instruction of the State Department (No. 106) of March 12, 1886, and after several observations on the contents of the said instruction and notes, uses the following language:
The political interest of the Empire in repressing abuses of the treaty, resorted to with the view of evading military duty, is so vital that, after past experience, the denunciation of the treaties of 1868 would become necessary to German interests if the interpretation of the treaties, as set forth in Mr. Pendleton’s note, should be accepted as final. The Imperial Government has thus far not abandoned the hope of being able, by a judicidus exercise of the right of expulsion, to avert the evil consequences which, from the German standpoint, are naturally connected with the continued existence of the treaties.
The Department of State takes the view that if the principles recently asserted are to be enforced, any German who has emigrated to the United States will, in case of his speedy return, have cause to fear immediate expulsion, and thinks that this state of affairs would be equivalent to a de facto restoration of the condition of things which existed before the treaties were concluded. Neither of these assumptions, however, seems well founded. In the case of persons who have emigrated to the United States in good faith, that is to say, who can show that they have done so from motives not connected with the general military service, there will be no occasion for [Page 380] expulsion. Yet, even persons liable to military duty who have emigrated notoriously for the purpose of evading the performance of military duty, are better off now than they were before the conclusion of the treaties, or than they would be after their denunciation, since now, provided that they do not expressly or tacitly renounce their American naturalization, they suffer expulsion only, and can not be punished or compelled to serve in the standing army or navy.
Mr. von Alvensleben says also that—
Mr. Pendleton’s statement in his note of April 10, 1886, that both parties have hitherto been agreed concerning an interpretation of the treaty that recognizes the right of undisturbed sojourn for two years, is based upon a misapprehension.
I can not admit the entire justice of this statement. In my note of the 10th of April last, which Mr. von Alvensleben had before him, I cited in support the cases of Salomon Moritz Stern, Elie Bloch, Edmund Klein, Arfst A. Rörden, Lazard Rosenwald, Joseph Wackermann, and Jürgen J. Grau, by name, not by quotations, from the correspondence. I was justified in supposing that the correspondence, being in the foreign office there would be no need to quote passages in my note.
case of salomon moritz stern.
In this case Minister Davis intervened on February 10, 1876, addressing Mr. von Billow, Imperial secretary of state for foreign affairs, and asking that a decree of expulsion should be revoked, but referring in no way to the treaty provision respecting a two years’ stay. On May 29th following, Mr. von Biilow informed the legation, in reply, that the decision had been reached that the measure of expulsion should not be proceeded with “before the expiration of the period of two years provided for in section 4 of the treaty of February 22, 1868.”
case of elie bloch.
In this case the property of the complainant had been attached, and he had left Alsace-Lorraine in apprehension of being arrested. Minister Taylor, on October 23, 1878, addressed a note of intervention to Mr. von Biilow, Imperial secretary of state for foreign affairs, requesting that—
* * * The sentence against him (Bloch) may be removed in order that he may visit Elsassfor the two years allowed to naturalized Americans. * * *
Under date of January 25, 1879, Mr. von Bülow replied to the note of intervention, saying:
* * * That he had not failed to recommend to the appropriate authority, that, if feasible, Elias Bloch, of Isenheim, * * * should be permitted to return to Alsace-Lorraine for a period of two years’ sojourn without being exposed to the penalty pronounced against his person and property. * * *
case of edmund klein.
Klein had been ordered by the authorities to leave Alsace-Lorraine. Mr. Everett, chargé d’affaires, addressed, under date of January 21, 1879, to Mr. von Bülow, Imperial secretary of state, a note which contains the folio wing:
* * * The undersigned ventures to express the hope that his excellency, Mr. von Bülow, Will cause the above case to be investigated, and if the facts should prove to be as stated, that the said Klein may be allowed to remain in Sargemünd during the two years provided by treaty of 1868. * * *
Under date of April 28, 1879, Mr. von Bülow replied:
* * * * that the further sojourn of Klein would be permitted.* * * *
case of arfst a. rörden.
Rörden had been ordered by the authorities to leave Prussia. Minister White addressed, under date of September 15, 1879, a note of intervention to Mr. von Billow, Imperial secretary of state for foreign affairs, asking—
* * * That Mr. Borden may be accorded his full rights, under the treaty of 1868, to remain unmolested two years in his native country. * * *
In reply, Mr. von Philipsborn, in charge of the Imperial foreign office, informed the legation, under date of December 20, 1879, that—
* * * Pursuant to a communication of the minister of the interior the measures instituted against Arfst Andreas Rörden had been desisted from, and that his sojourn in the country until further notice had been allowed. * * * *
case of lazard rosenwald.
Rosenwald had been ordered to leave Alsace-Lorraine. Minister White, in his note of intervention, dated May 20, 1880, addressed to Prince Hohenlohe, in charge of the Imperial foreign office, says:
On July 1, 1879, he (Rosenwald) returned to visit his native country for a period of two years, only about eleven months of which have as yet expired.* * *
Under date of June 17, 1880, Prince Hohenlohe informed the legation in reply that Rosenwald would be permitted to sojourn in Alsace-Lorraine for another year.
case of joseph wackermann.
Extract from note, dated August 28, 1880, of Minister White to Prince Hohenlohe, in charge of the Imperial foreign office, relating to Alsace-Lorraine cases:
Although the case of Wackermann was decided adversely, the undersigned nevertheless cites it for the reason that in the note of August 28, 1878, of the late minister of the United States at Berlin, Mr. Bayard Taylor, in which this case was presented to the Imperial foreign office, the ground on which the right of Wackermann to sojourn for two years in Alsace-Lorraine was claimed was distinctly stated to be the provisions of the treaty of February 22, 1868, as were indeed almost invariably the claims for relief ad-dressed by this legation to the Lmperial foreign office in kindred cases.
Mr. Taylor, in the note referred to, after acknowledging the receipt of the communication of the-25th instant, of his excellency Mr. von Radowitz, in charge of the Imperial foreign office, “communicating the decision of the Imperial Government expelling Joseph Wackermann, of Eeichshofen, in Alsace-Lorraine, before the expiration of the two years’ stay permitted to all German-American citizens by Article 4 of the treaty of February 22, 1868,”adds: “While trusting the Imperial foreign ministry possesses full and satisfactory reasons for making this case an exception to the above stipulation of the treaty,” etc., stating further on:
The undersigned does not mean to question in any way the action of the Imperial Government in accordance with existing laws, hut he would most respectfully request that in future cases where the provision contained in Article 4 of the treaty of February 22, 1868, is suspended or set aside, a distinct specification of the nature of the offense may be furnished to this legation.
In the reply to this note by his excellency Mr. von Billow, Imperial secretary of state for foreign affairs, no dissent whatever was expressed to the position respecting the two-years clause of the treaty of February 22, 1868, thus distinctly assumed by Mr. Taylor, the expulsion of Wackermann being based solely on his bad behavior.
[Page 382]case of jürgen j. grau.
Grau had been threatened with expulsion from Prussia, In Minister Sargent’s note of intervention, dated December 15, 1882, addressed to Count Hatzfeldt, Imperial secretary of state for foreign affairs, the following passages occur:
It would appear by the inclosed document from the hardesvogt (sheriff) of Norhurg, that Grau has expressed the intention of remaining in that locality, which the authorities will permit him to do on condition that he will furnish certain certificates therein mentioned, Mr. Grau, on the contrary, expresses to the legation his intention of returning to the United States at the end of the two years’ visit here, to which he believes himself entitled under the treaty of 1868.
The undersigned begs that his excellency will cause this case to be investigated, and if the facts prove to be as stated, that Mr. Grau be permitted to remain the full two years in his native place, and that no fine; may be levied on him.
In the note of reply, dated May 1, 1883, from Count Hatzfeldt, the legation is informed as follows:
* * * That pursuant to the request made, Jurgen Jessen Grau, of Hohn, who returned on November 23, 1881, from America, on a temporary visit to his former home, will be permitted to remain in Sohleswig until the expiration of his two years’ period of sojourn in this country. * * *
I am not unmindful of the fact that I have heretofore called the attention of the Department to these cases, but I have thought that their citation again, with the proper italics as above, in connection with the charge of misapprehension, would not be inappropriate.
It is true that in the case of Baümer there is a statement that every sovereign state is entitled, under international law principles, from actuating motives of internal state police or state policy, to refuse to foreigners the privilege of sojourn. A renunciation of the right is, as has been pointed out by this Government on former occasions, nowhere contained in the treaty of February 22, 1868.”But it is very apparent that this statement is made in view of the circumstances of that particular case. The claim was for damages for expulsion, which the Imperial authorities assert they cannot recognize and pay, for several reasons, among others that Baümer did not object to, but rather hastened to meet half way the expulsion, and that in addition he had made all his preparations to return to America about the time the order of exculsion was made. The foreign secretary says:
It is to be regretted that Baümer did not complain of this expulsion either to the appropriate internal authorities or to the Imperial Government through the medium of the envoy of the United States. The undersigned does not hesitate to declare that on the basis of such a complaint the decree in question of the Royal Government at Mninster, although its legality is beyond question, would have been canceled in view of the circumstances that in the decision of the case by the higher authorities, the existing circumstances of a local nature would have been subordinated to the general points of view involved, and in view of this circumstance the reyal minister of the interior gladly holds himself in readiness to direct that Baümer, should he return to Prussia, be permitted to sojourn for the period of two years on Prussian territory, in so far as other and different valid reasons for the prohibition of such sojourn than those indicated by the Royal Government at Münster are not made to appear.
As this is the only case cited by Mr. von Alvensleben, and is, so far as is known, the only case which could be cited, I may be permitted to say that it hardly countervails the many declarations which have been quoted above, in eases arising before and after it was argued and decided, and hardly sustains the claim of Mr. von Alvensleben that the Imperial Government has on the contrary always maintained this position on several occasions.”
I have, etc.,