No. 284.
Mr. Bayard to Mr. Pendleton.

No. 236.]

Sir: I have to acknowledge the receipt of your dispatch No, 448, of June 6, 1887. According to the statement contained therein and in the accompanying exhibits, Albert Bernhard whose case you present, was born in Mülhausen, in Alsace, September 28, 1845. He left the latter country in May, 1872, and, after a stay of three days in New York, took up his residence in Omaha, where he was engaged as a bookkeeper until December, 1872, when he left in consequence of ill health and moved to Saint Louis, in which city he obtained a position as salesman on the 1st of April, 1873, and on the 23d of October, 1878, was duly naturalized a citizen of the United States by the decree of the circuit court of Saint Louis. He returned to Mülhausen in August, 1880, in order to aid his father in his business, and on the 13th of February last he was arrested by the local authorities of Mülhausen on the charge of being concerned in a seditious conspiracy against the German Government.

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On the questions which you present as to his right to claim the interposition of this Department, I answer as follows:

In the first place, there can be no question but that Mr. Bernhard, as residing in Mülhausen, is amenable to the local authorities for seditious conspiracy, no matter what may be his nationality. If injustice is done by making a charge against him without probable cause, or in the subsequent trial of such charge, his immediate remedy is by proceedings against the individuals by whom the charge is preferred. If justice be denied him in such proceedings, then, supposing him to be a citizen of the United States, he may claim, in due course, the interposition of this Department.

Such being the case, I proceed to consider the questions presented by you as to the right of Mr. Bernhard, as an American citizen, to ask bur intervention in such contingency. Although his naturalization papers are not attached to your dispatch, yet I assume that naturalization was duly granted. But you state that certain difficulties are, or may be, made by the German Government in the way of recognizing in Germany the validity of such naturalization, and first, that the German Government maintains that the Bancroft treaty, affirming and limiting the rights of Germans naturalized in the United States, does not apply to the district of Alsace-Lorraine. It is true, that in the instruction of Mr. Fish to Mr. Bancroft, April 4, 1873, quoted by you, it was suggested to the German Government that it should assent to a naturalization treaty covering the whole Empire; but this position was taken, not because any doubt existed that the Bancroft treaty was not coextensive in its operation with the Empire, but because an intimation had been given that it would be more consistent with the views then held by the German Government that a new treaty should be executed, and because, in case of such a new treaty, it seemed proper that it should be made expressly to apply to all the newly-acquired territory which the German Empire included.

So far from this Government acquiescing in the view that the Bancroft treaty did not cover Alsace-Lorraine, Mr. Evarts on December 30, 1882, in reply to a dispatch from Mr. White in Loeb’s case, in which an arrest had been made on the basis of such non-applicability, wrote as follows:

This Department fully approves of Mr. White’s action in reference to Mr. Loeb’s case, and, moreover, heartily concurs in the view expressed by the minister that this Government can not assent to the doctrine of the non-applicability of the treaties of 1868 to Alsace-Lorraine. You will therefore continue to discreetly but firmly press Mr. Loeb’s case upon the attention of the Imperial German Government until a favorable disposition of it is secured.

As far as I can learn from the records of this Department, the German Government never insisted on final action adverse to citizens of the United States based on the assumption that the Bancroft treaty was not applicable to Alsace-Lorraine.

It is hardly necessary for me to remind you how serious would be the consequences if such a position should be conceded. The United States in a case in which the position of the parties in respect to such extension of treaties over the German Empire was reversed, took the ground, in response to the application of Germany, that such extension could not be contested. Thus it was held by Mr. Evarts, as Attorney-General, that as by the formation of the North German Union, after the battle of Sadowa, the entire navy of the union was placed under the command of Prussia, the provisions of the treaty of May 1, 1828, between the United States and Prussia for the arrest of deserters from the public [Page 396] vessels of the respective countries, applied to public vessels sailing under the flag of the North German Union. (Op’s Att’ys-General, Vol. XII, pp. 463–467.)

The United States have never denied the applicability of all treaties executed by them to territories acquired by them subsequent to the date of such treaties. On the hypothesis that territories annexed by a sovereign are not bound by the treaties previously entered into by him, California, annexed by the United States by the treaty with Mexico of 1848, would not be subject to the provisions of the treaty with Prussia of 1828. It is difficult to suppose that Germany would insist on a construction which would divest her, so far as concerns the California coast, of the valuable commercial rights conferred on her by that treaty, and would deprive her consuls at California ports of the important prerogartives which that treaty gives; the very one-sidedness of such a construction discloses its incompatibility with the principles of justice as well as of international law. All the citizens of the United States, with their commerce, would be entitled to the protection of the treaty everywhere in Germany, except in Alsace-Lorraine; but German subjects and German commerce would be equally deprived of the protection of the treaty on our Pacific coast.

Assuming, however, that Germany refuses to recognize the Bancroft treaty as operative in Alsace-Lorraine, and that we acquiesce in that construction, and assuming as a consequence of this position that Mr. Bernhard was bound by French law when he left Alsace-Lorraine, you then inquire whether by non-compliance with that law his naturalization in the United States is not to be considered, so far as concerns Germany, inoperative, from the fact that his declaration of April 30, 1887 (made before the Imperial prosecutor at Miiihausen), shows that he did not leave Alsace-Lorraine with the intention of the permanent settlement abroad required by that law.

Two interesting and important questions may be thus presented for Consideration:

Whether after the annexation of Alsace-Lorraine by Germany the French law continued to bind Mr. Bernhard, then in the United States; and,
Whether, if it did, such limitation of the right of expatriation is consistent with that right, as now recognized by Germany and ourselves.

I do not now consider it necessary to discuss these questions, since it is clear that the declaration of April 30, 1887, so far from negativing Mr. Bernhardt intentions to settle in America, implies such an intention. He says that in May, 1872, he had “ausgewandert” to America, and “ausgewandert” you translate as “emigrated,” and in the judgment of this Department correctly. That “emigration” and “Auswa’n-derung” imply intended expatriation is shown by the fact that the words have in numerous cases been used by both the German Government and ourselves in that sense; and that the word “ausgewandert” was used by Mr. Bernhard in the same sense is shown by the next statement made by him in this same declaration, that carrying out his “Auswan-derung” he proceeded as soon as he found a permanent home, which was a few months after his arrival in the United States, to declare his intention to become a citizen of this country, at the same time unreservedly abjuring his former allegiance. Even on the supposition, which I hold baseless, that it is necessary, to enable him to claim the rights of an American citizen, that he should have intended when he leit Alsace-Lorraine to leave it permanently, yet it is undeniable that [Page 397] by the papers now before me this intention is shown by the clearest affirmation to have existed at the time he came to the United States.

I have thus answered the final question contained in your dispatch. As to the points thus presented, I hold that so far no ground is shown for a refusal to grant Mr. Bernhard the rights of American citizenship. There is, however, a serious obstacle, not heretofore noticed, to the intervention of the Department on his behalf. If a naturalized citizen of the United States of his own free will leaves his adopted country and returns to his native land, settles himself in business there in his own right, and not merely as an agent of an American house, withdraws himself from all the duties of citizenship in his adopted country and voluntarily resides abroad as a matter of choice, for such a period as reasonably leads to the inference of the animus manendi which constitutes domicile, then he renounces his right to call upon the United States to protect him against the government under whose control he has so chosen to place himself.

In the case before us, Mr. Bernhard returned in 1880 (and in less than two years after he had acquired American citizenship), to his native home at Mülhausen, where he regularly entered into business and established himself with every customary surrounding proof of an intention there to remain, in which no change is yet apparent, or if any intention to remove therefrom appears, it is to settle in France, and not in the United States.

It will be your duty, therefore, to collect such additional facts as will enable you to determine how far, from all the circumstances of the case, his intention of remaining permanently abroad is to be inferred, for this is an essential element in the case, which must be determined before further action can be taken under instructions of this Department.

I am etc.,