Mr. Pendleton to Mr. Bayard.
Berlin , December 3, 1887. (Received December 19.)
Sir: I have the honor to acknowledge the receipt to-day of your instruction No. 265, of the 18th ultimo, in reference to the case of Hans Jacobsen, arrested on the Island of Alsen, and lately confined in Flensburg, on the charge of being a deserter from the German army.
I inclose the correspondence had with the consul at Hamburg, by whom the attention of this legation was called to this case in October last.
The facts and the question are stated in the letter of Mr. Coleman, under date of October 12, 1887, written by my direction, and the reply of Consul Lang of October 20, with its inclosure.
From these papers, as well as from the statements made in writing to the consul by the friends of Jacobsen before the consul called my attention to the subject, it clearly appears that prior to his emigration to the United States, to wit, in the month of October, 1878, Jacobsen was summoned for military service; that he had presented himself, was examined, was accepted and enlisted. After enlistment he was allowed to return for a few days to his home, being ordered to report on the 5th November next ensuing. In the interval he left Germany without leave, going to the United States.
The case falls plainly within the definition of desertion “committed before emigration,” as understood by the German authorities and by this legation, as shown by a practice unbroken, as I am advised, since the making of the treaty of 1868. By Article II of that treaty a naturalized citizen of one country returning to the other country remains liable to trial and punishment for an action committed before emigration. I therefore declined to intervene.
It will be observed that the case of Jacobsen after his arrest was sent to a military tribunal, which is never done in the case of mere offense against the civil law, as would be unlawful emigration. It will be also observed that in the inclosure of Consul Lang’s letter of October 20 last I was given to understand that Jacobsen’s own version of the facts in his case would be forwarded to me. As this has never been done, it is to be assumed that he is satisfied with the statement made in his behalf.
I note the instruction to present Jacobsen’s case to the foreign office, but in view of the facts as herein stated, and of my former decision not to intervene, and the reasons for such decision, of which the Department was necessarily ignorant at the time when the instruction was written, I shall respectfully take the liberty to suspend compliance therewith until further instructed by telegraph or otherwise.
Hoping that my action in both respects may meet the approval of the Department.
I have, etc.,