No. 282.
Mr. Pendleton to Mr. Bayard.
Legation of
the United States,
Berlin, June 6, 1887.
(Received June 20.)
No. 448.]
Sir: I inclose herewith a copy of my note to the
foreign office of the date of March 30, 1887, and of the note of the foreign
office dated May 25, 1887 (with translation), in the case of Albert
Bernhard, a citizen of the United States, who emigrated from Alsace-Lorraine
in 1872.
It will be observed that Count Berchem questions the citizenship in the
United States of Bernhard, notwithstanding his naturalization, because—
- (1)
- The code civil prevailed in Alsace-Lorraine until 1873 (a year
after Bernhardt emigration). That code provides that French
nationality could be lost by an “éstablissement fait en pays
étranger sans esprit de retour,” and “les établissements de commerce
ne pourront jamais être considérés comme ayant. êté faits sans
esprit de retour,” and that after Bernhardt declaration before the
chief state’s attorney at Mulhausen it can not be accepted that at
the beginning of his residence in America he had the intention not
to return to his home. Such intention must be proven affirmatively
and clearly.
- (2)
- When Bernhard acquired his United States citizenship, the German
law of June 1, 1870, introduced into Alsace-Lorraine in 1873,
prevailed for the inhabitants of those provinces; and that Bernhard
had not complied with its provisions, neither obtained a dismissal
from his German allegiance according to section 13, No. 1, nor
remained abroad ten years, according to section 13, No. 4.
Having thus contested Bernhardt release from German allegiance, the statement
is made that the evidence of his affiliation with the “league of patriots,”
resulting from the finding of the statutes of that organization (alleged to
be in favor of forcible separation of the province of Alsace-Lorraine from
the German Empire) in his possession, subjected him to grave suspicion, and
that such suspicion fully warranted the arrest, isolation, and the
interception of his mails whilst his examination was progressing, and that
all these measures were taken in exact compliance with the provisions of the
law.
[Page 390]
The contention that Bernhard is not freed from his German allegiance would
seem to have force, if, indeed, the provisions of the Bancroft treaty of
1868 with the North German Confederation do not apply to the provinces of
Alsace-Lorraine, and that they do not seems to be very strongly implied in
the instruction of Mr. Fish, Secretary of State, to Mr. Bancroft, April 14,
1873, in which the fact that “the provisions of none of the treaties extend
to Alsace and Lorraine” is urged as a reason for the negotiation of a treaty
which shall be coextensive with the limits of the Empire.
I have not yet answered the note of the foreign office, because of some
hesitation in what sense the answer may be most effectively presented,
either as to the question of citizenship or as to the other question of the
reasonableness and fairness of the measures of arrest, search, and
surveillance of mails, etc., as to which I have no proof except the
statements of Bernhard, whose protests rather admitted the presence of the
inculpating evidence, but sought to avoid the conclusion by the allegation
that they were only casually in his possession, and were, in fact, the
property of his brother. If you have any suggestion to make as to the answer
which you desire should be presented, or as to the course which I shall
hereafter pursue, I would be glad to have early instructions.
I have not failed to advise Bernhard of the position taken by the foreign
office, and of the possibility of his being subjected to great inconvenience
and discomfort if there should arise further cause for the action of the
German police; and I did this the more readily because he had written to me
and inquired whether his absence from Alsace would prejudice his claim
against the German Government, and expressed his great willingness to accept
a lucrative position in Paris which had been offered to him, if his presence
were not essential. From his last letter, received yesterday, I infer that
he has changed his mind, as he philosophically remarks that he has suffered
so much annoyance that a little more or less additional inconvenience would
not seem a matter of any importance. I ought to have stated above, that a
few days after his arrest Bernhard was released from custody, and that soon
afterward he was notified that the examination in his case had been
concluded and he would not be prosecuted.
I have, etc.,
[Inclosure 1 in No. 448.]
Mr. Pendleton to
Count Bismarck.
Legation of the United States of America,
Berlin, March 30, 1887.
The undersigned, envoy, etc., of the United States of America, has the
honor to invite the attention of his excellency Count
Bismarck-Schdnhausen, Imperial secretary of state for foreign affairs,
to the case of imprisonment of Albert Bernhard, a naturalized citizen of
the United States.
The facts of this case, as stated by Bernhard, are as follows: He was
born at Mülhausen, in Alsace, on September 28, 1845, and emigrated in
June, 1872, to the United States, where he was naturalized as a citizen
on October 23, 1878, In August, 1880, he returned to Miiihausen, where
he has since been engaged in business.
On the morning of the 13th of February last, two policemen entered the
dwelling of Bernhard, at 42 Illsacher street, Miiihausen, and without
showing any warrant or stating any grounds for their action, thoroughly
searched every part of the same and everything contained therein. The
search resulted in the finding, among refuse periodicals, of a little
pamphlet containing an invitation to subscribe to a French newspaper, Le
Drapeau, which was seized by the policemen. With respect to this
paniphlet, which seems to have furnished the occasion of the arrest of
Bernhard, which
[Page 391]
immediately
ensued, he asserts that it was casually handed to him years ago by his
brother as an advertisement to read, and was thrown aside with other
waste paper to be ultimately burned or used for wrapping, without any
attention having been since given to it. Bernhard was at once taken to
the police station, whence, after a detention there of about an hour, he
was, without any examination having taken place, conducted on foot
through the crowded streets to the prison and placed in confinement
there in a small cell. After having passed the night and the next day in
his cell, without being permitted counsel or visits of family or
friends, though frequently requesting the same, he was, together with
another prisoner, placed in a carriage, informed that he would be
handcuffed and made to walk through the streets if he spoke a word to
the other prisoner, and conducted before a judge.
The judge questioned him asking if he were a member of or if he had
collected for or sent money to the French “Ligues des Patribtes,” or if
he then was or at any time had been in any way connected with the same.
To these inquiries Bernhard replied in the negative, and truthfully, he
states, protesting as a law-abiding man and an American citizen against
arbitrary arrest, and stating that he attended solely to his business
and never meddled with such matters. He was then remanded to prison. It
was not until after an imprisonment of over five days that Bernhard was
permitted to see counsel in the presence of the clerk of the court, when
he protested against the treatment he had received, and appealed to his
American citizenship for protection. From that time until his release,
which took place on the evening of the 26th of February, he was allowed
to write home and receive open letters which had passed through the
hands of the judge. After his release and until the 8th of March all
business and private mail arriving for him was, however, kept and opened
by that official. Bernhard asserts that his having been thus secretly
confined for some fourteen days and forbidden all communication with
wife, family, or friends, resulted in his business remaining unattended
to; that through his imprisonment most serious and important interests
were necessarily neglected; that payments which were due, being
postponed, creditors attached some of the property of his firm (horses,
wagons, casks, and various articles); that drafts upon him which had
become due and which he was prepared to pay have been dishonored and
protested; that he has thus been brought to the verge of ruin; that his
health was shaken by his imprisonment, sciatica having set in; that his
character in his private and business capacity has been ruined by the
harsh and unjust treatment to which he has been subjected, and that
some; officials and many people now look upon him with suspicion and
contempt.
Bernhard protests his entire innocence of the charge, that of high
treason, which appears to have been prepared against him, and declares
that his life and conduct have never afforded the slightest ground for
suspecting him of such or any other crime.
The undersigned begs that his excellency will kindly cause this case to
be investigated, and that for the harsh treatment and losses he has
sustained redress may be afforded to Bernhard, if it shall be found that
the essential facts have been correctly stated by him.
Five official documents, which relate to Bernhard’s case, and which are
particularly enumerated below, are herewith inclosed, with the
respectful request for their ultimate return. Bernhard’s certificate of
naturalization has been heretofore exhibited at this legation, and is
now either in his possession or in that of the authorities at
Müihausen.
The undersigned avails, &c.,
[Inclosure No. 2 in No.
448.—Translation.]
Count Berchem to
Mr. Pendleton.
Foreign
Office, Berlin, May 25,
1887.
The undersigned has the honor to inform the envoy extraordinary and
minister plenipotentiary of the United States of America, Mr. George H.
Pendleton, referring to the note of the 30th March of this year,
concerning the arrest of the wine merchant, Albert Bernhard, at
Müihausen, Alsace, that the investigation of the circumstances of the
case have shown the following:
So far as the citizenship of Bernhard is concerned, he must be considered
as still a German, notwithstanding his naturalization in the United
States of America. Until the year 1873 the provisions of the code civil
prevailed for the people of Alsace-Lorraine in reference to the loss of
citizenship. According to Article 17, No. 13, of this code an
“établissement fait en pays étranger sans esprit de retour”was
essential. After the declaration of Bernhard before the Imperial chief
state’s attorney, at Müihausen, Alsace, a copy of which is hereto
annexed, that he at the beginning of his residence
[Page 392]
in the United States had not the intention
to return home. To sustain his intention there must he distinct and not
doubtfol proofs, as Article 17 of the code civil provides that, “Les
établissements de commerce ne pourront jamais être considérés comme
ayant été faits sans esprit de retour.” At the time when Bernhard
acquired citizenship in the United States of America the German law of
June 1, 1870, introduced into Alsace-Lorraine by the law of January 8,
1873, prevailed for the subjects of Alsace-Lorraine. Bernhard never made
the demand for dismissal from the German allegiance provided for in
section 13, No. 1, of this law. Just as little can the loss of
citizenship accrue to him by reason of a ten years’ residence abroad.
(Section 13, No. 3, and section 21, A. A. O.)
The provisions of the law have been rigidly observed in the proceedings
against Bernhard. The search of his house was ordered a ad executed by
competent authority in accordance with section J.05, ff. of criminal
process regulations. The statutes of the “Patriotic League” were found
in his possession, in which circumstances sufficient indication of his
membership in this secret society, seeking to effect the forcible
separation of Alsace-Lorraine, is to be discovered. On the ground of
this suspicion his arrest was ordered by the competent judge. The order
of attachment of the letters and packages directed to the accused rests
on section 99 of code of criminal process. The importance of the
punishable actions charged against Bernhard justified these measures, as
well as his isolation during the continuance of his examination the
investigation commenced, by the order of the 2d March of this year, has
been in the mean time closed, and it is for the determination of the
chief Imperial prosecuting officer, that is to say, of the Imperial
court, to decide whether the prosecution of Bern-hard shall be
commenced.
Whilst the undersigned returns herewith the inclosures of the note of the
30th March last, he avails himself, etc.
Inclosure 3 in No.
448.—Translation.—Proceedings, Mülhausen, April 30, 1887.—Imperial
prosecutor’s office.]
Before the undersigned, first prosecuting attorney, appeared, in
pursuance of written notice, the wine merchant, Albert Bernhard, of
Mülhausen, Alsace, residing in Illsacher Strasse 42, who, in answer to
question, declared as follows:
After I emigrated from here to America, in May, 1872, and had arrived in
New York on the 21st June of that year I remained in that city only
three days, and went immediately to Omaha (Nebraska, United States).
Here I took a position as book-keeper in the wholesale grocery
establishment of the firm of Creighton & Morgan, for the monthly
salary of $80, which I held until December, 1872. Then I took a fever in
consequence of the climate, and lost my position because of
long-continued sickness, and in December of that year left Omaha and
went to Saint Louis (Missouri, United States), where I had
relatives.
In that city I did not succeed at first in finding a suitable position,
so that for three months I was obliged to support myself as day laborer
until at last, on the 1st of April, 1873, I obtained a place as salesman
in the jewelry and watch-making establishment of Musmod Zaccard’s
Jewelry Company, in that city. This position I occupied with ever
increasing salary until my departure for Europe, on the 15th of August,
1880, after I had, in the mean time, by the decree of the circuit court
at Saint Louis, on the 23d of October, 1878, which is herewith
exhibited, obtained my citizenship in the United States of North
America.
I came to Europe and direct to Mülhausen, Alsace, only on the request of
my father, then living, who needed my aid in his business.
I have never had public employment, whether State or municipal, during my
residence in America.
Read to me, approved and signed.
- A. Bernhard.
- Veit,
First Prosecuting Attorney.
