No. 282.
Mr. Pendleton to Mr. Bayard.

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—

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.
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.,

Geo. H. Pendleton.
[Inclosure 1 in No. 448.]

Mr. Pendleton to Count Bismarck.

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.,

Geo. H. Pendleton.
[Inclosure No. 2 in No. 448.—Translation.]

Count Berchem to Mr. Pendleton.

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.