Mr. Wharton to Mr. Phelps.

No. 146.]

Sir: I transmit herewith copy of a letter addressed to this Department under date of 23d ultimo by Mr. George Haberacker, of Cleveland, Ohio, in relation to the impressment into the Bavarian army of his brother, John Haberacker.

From this letter, and from the newspaper clipping which accompanied it, the facts of the case may be thus conveniently summarized:

John Haberacker was born in Windsheim, Bavaria, on August 18, 1869, and has but very recently attained his twenty-first year. His father was a subject of Bavaria, and died in that country in 1883, when John was 14 years old. His widow emigrated to the United States the same year (1883), bringing her minor children with her. Three years later (in 1886) the widow Haberacker married one Andrew Knauss, a Bavarian by birth, but then for thirty-three years a citizen of the United States by naturalization. About three months ago Mr. Knauss and his wife went to Bavaria to visit relatives at Windsheim, taking with them John Haberacker, who had not yet reached full age. They returned in July, leaving John in Windsheim for a further stay of a fortnight. $On August 3, a few days before he had arranged to return to the United States, John Haberacker was arrested as liable to military service and taken to Uffenheim, where a partial examination was had. Thence he was taken to Anspach, where he was heard before a military court and adjudged liable to three years’ service as a Bavarian subject in the armies of the Kingdom. He was accordingly assigned to the Fourteenth Regiment of Infantry, on duty at Nuremberg, where he ‘was when last heard from.

The statutes of the United States applicable to the case are as follows:

  • Sec. 1994. Any woman who is now, or may hereafter he, married to a citizen of the United States, and who might herself he lawfully naturalized, shall he deemed a citizen.
  • Sec. 2172. The children of persons who have “been duly naturalized under any law of the United States * * * being under the age of 21 years at the time of the naturalization of their parents, shall, if dwelling in the United States, he considered as citizens thereof.

It has been held by our courts that the husband’s citizenship confers citizenship upon the wife without application for naturalization on her part or the usual qualifications. There is also an express decision of the United States circuit court (13 Federal Reporter, 82) that upon the marriage of a resident alien woman with a naturalized citizen both she and her infant son, dwelling in this country, become citizens of the [Page 497] United States as fully as if they had become such in the special mode prescribed by the naturalization laws.

It is conclusive, therefore, under the laws of this country, that John Haberacker, upon the marriage of his mother to Knauss in 1886, became a naturalized American citizen. That he shall be treated as such by the Royal Government of Bavaria, our treaty with that Government of May 26, 1868, only requires further that he “shall have resided uninterruptedly within the United States for five years.”

It is the generally accepted theory in this country that a widowed mother may reasonably and in good faith change the domicile of her minor children. When the boy John Haberacker, therefore, came to this country to live, in 1883, with his mother, his only natural protector, the United States thereby became his domicile. It is understood that in some of the systems of European law a different view prevails, viz, that the minor’s domicile is fixed by the father’s death and can not be changed during minority by the mother. The Department is not informed, however, that the law of Bavaria in this regard is different from our own. And in any event, whatever view that Government may entertain as to the legal domicile of Haberacker, with respect, for instance, to such a question as the succession to property in that Kingdom, it is believed that they will agree with us that the facts in this case constitute such an uninterrupted residence in this country as is contemplated by the treaty and bring Haberacker’s case within its provisions.

In this connection the stipulations of section iii of the supplementary protocol of Munich, signed May 26, 1868, have a pertinent application. It is therein provided that while Bavarians “emigrating from Bavaria before the fulfillment of their military duty can not be admitted to a permanent residence in the land till they shall have become 32 years old” does not forbid a journey to Bavaria for a less period of time and for definite purposes, and the Royal Bavarian Government cheerfully undertakes, in cases of good faith, “to allow a mild rule in practice to be adopted.” The emigration of a child of 14 in the care of his widowed mother suggests no bad faith. The child at that age could not have been enrolled for service under a draft, or stood in service under the flag, or broken a leave for a limited time, or failed to respond, while on unlimited leave, to a call into the service to which he belonged—which are the usual conditions under which service is exacted of Germans returning to Germany after naturalization abroad. The general rule now observed in practice throughout the German Empire corresponds with the specific rule laid down in article ii of the treaty of naturalization of July 19, 1868, between the United States and Baden, and its reasonableness and justice commend it as equitably governing such cases. Under it emigration, even if transgressing other legal provisions on military duty than the cases of practical desertion or evasion of an accrued and existing obligation to service at the time, which are recited above, does not subject the emigrant on return to be held to military service or to he tried and punished for nonfulfillment of military duty.

In view of the above, I have to direct you to call the facts in this case to the attention of the Government of Bavaria, in the confident belief that that Government will be pleased to take steps looking to Haberacker’s prompt release from his present enforced military service.

In conclusion, I must caution you not to allow the consideration of this case to be prejudiced by the statement in his brother’s letter (George Haberacker) of August 19, 1890, that John, on reaching his legal age, “had intended to take out his full papers, if necessary on his return.” [Page 498] The brother’s supposition that some formal act of the court might be required to confirm his citizenship, but which we have found to be unnecessary, can have no bearing either way.

I am, etc.,

William F. Wharton,
Acting Secretary.
[Inclosure 1 in No. 146.]

Mr. Haberacker to Mr. Blaine.

Honorable Sir: I most respectfully submit the inclosed clipping from a Cleveland paper of this date, which is a correct statement of the facts of arrest, etc., of John Haberacker, my brother, in Bavaria. He reached his twenty-first year yesterday, and had intended to take out his full papers, if necessary, on his return.

Praying you to see that justice is done him, his parents and the undersigned hopefully await your assistance.

Yours, most respectfully,

George Haberacker.
[Inclosure.—From the Cleveland Plaindealer of August 19, 1890.]

Newspaper account of the arrest of John Haberacker.

A Cleveland boy sojourning in Bavaria has been arrested and forced into the military service of the Kingdom.

This is the plight that John Haberacker, whose home is in No. 288 St. Clair street, is in. The young man reached his majority only yesterday. His twenty-first birthday he will never forget as long as he lives. He celebrated it gloomily, despondently, and hopelessly in the uniform of a conscript.

John is a native of Bavaria, it is true, where he was born in 1869. When he was 14 years old his father died. His mother soon after, with her family, including John, came to America, coming direct to Cleveland. Here the widow Haberacker married Andrew Knauss, with whom John has ever since lived, the treatment he received from his foster father being that due a son in fact. He went to school until he had learning enough to prepare himself for whatever vocation he might choose. He determined to learn the art of printing. He did, and was for a long while, and when he went abroad, employed as a compositor on the Waechter am Erie. He was industrious, apt, and attentive to business, giving promise of getting along exceptionally well. He was popular with his friends, being possessed of many excellent traits not common in the modern-day youth. Last May Mr. Knauss concluded to visit his old home, Windsheim, a town in Bavaria. It was the former home also of his wife and John’s birthplace.

So the three sailed from New York in the early part of that month, arriving all right at their destination, where they had a splendid time with their relations, friends, and acquaintances until July 23, when Mr. Knauss and his wife left on their return trip to America. But John remained behind. Boy like, he had not had his trip out and desired to stay in Windsheim two weeks longer, expecting in that time to meet Prof. Hamm, of this city, who is leader of the Harmonie Singing Society here, and who had been traveling in Europe, and is now on the water homeward bound. John planned to leave Windsheim August 7. On the morning of August 3, between 5 and 6 o’clock, before he was up, a military official came to his boarding place and alarmed the house. To the question, “Who is there?” he made known his official character, and when he was afterwards politely and fearfully asked his errand he said he came to arrest John Haberacker for fleeing from the country to avoid doing military duty, as required of all native able-bodied youth 18 years old and upward.

The intelligence was conveyed to John. He could not make it out. He was an American, he thought, having grown up with that idea, and how the Government of Bavaria had any claim on him as a subject he could not understand. He was dazed and had to be reminded that he was under arrest and must accompany the officer, who deigned no further explanation, assuring him, however, that he was carrying out his orders and that he had no alternative in their execution. John, trembling, accompanied him. There being no tribunal in Windsheim having jurisdiction of the case, he was transferred with much dispatch to Uffenheim the same day. A partial [Page 499] inquiry into the facts was made, and the following morning, which was August 5, he was sent to Anspach, where he had a hearing in a military court. The finding was that he was liable to do military service as a Bavarian subject. He was sentenced, accordingly and in effect, to three years in the army. There being a garrison at Nuremberg, he was assigned the same day to the Fourteenth Infantry, where he is now in a barracks doing such duty as is required of a private soldier. His brother George, who is a dealer in picture frames at No. 288 St. Clair street, received two letters from him yesterday. In them he recites the story told in the foregoing narrative. He gives evidence of despair while he appeals for deliverance. While, he says, he has not been treated harshly, still no encouraging words are spoken, and he is left under the impression that there is no escape for him.

In extenuation of the Bavarian authorities, they urge that he is a citizen, of Bavaria and as such owes allegiance to that Government, because his father was born and died there. While he will not admit that, and knows that it had always been his intention to become a citizen of the United States, if he was not already, coming to Cleveland as he did with his only surviving parent seven years ago to make this their permanent residence, he is uneasy, apprehensive, and discouraged. He dreads to have to throw away three of the best years of his life in a foreign army, there being nothing in it, not even profitable experience.

Mr. and Mrs. Knauss were seen at their residence. Both are worried almost sick over the matter. The brother George, too, is put out, but he has confidence in being able to get the Department of State at Washington interested in the outrage, and expects to secure John’s early release. He has been advised that this may be accomplished if Secretary Blaine can be induced to lend his assistance and the power of his portfolio. The question involved is an international one, and must be determined by settling whether John is a subject of Bavaria or a citizen of the United States. At the time of his arrest and temporary absence from this country he was a minor, but his parents, his mother and stepfather, were citizens of the United States. The question presented, with the phases that the facts of this particular case give it, is a new one, and much interest will be aroused in its determination. Meantime poor John will be compelled to hear arms for a Government that he regards as alien. He is deserving of not only sympathy, but the interference of the city of Cleveland in his behalf. Such intercession should be made at Washington that he will be set free without the least delay, and the wrong should be completely vindicated. It is not John alone who has been injured. The city of Cleveland, the State of Ohio, and the United States have been grossly insulted, and satisfaction should he demanded. That means, first of all, that John should be given his liberty. Some of the friends of the unfortunate young man are at sea as to how to bring the case properly to the notice of Secretary Blaine. If the mayor happens to be in the city he should not hesitate to investigate the matter thoroughly; and when he has done that he will not be satisfied until John Haberacker is discharged from the Bavarian army and permitted to return to Cleveland.

The family are respectable, intelligent, well-to-do folks. Mr. Knauss has been in the United States twenty-nine years. He has lived in this city much of that period. Seldom has a stronger case for the interference of the Government in defense of one of its citizens been made. Not the slightest provocation appears for this high-handed, cruel outrage, and the victim is a peaceful, orderly, quiet, sober, and in every way excellent young man, who had gone to Bavaria to visit the scenes of his early childhood, intending to come back to his home, his permanent residence—Cleveland.

[Inclosure 2 in No. 146.]

Mr. Haberacker to Mr. Blaine.

Dear Sir: I respectfully and earnestly desire to call to your attention a matter which in my humble opinion is well worthy of your consideration. My brother, John Haberacker, a resident of this city, was arrested in Bavaria on August 3, while on a visit there, and impressed into the Bavarian army against his will. He came to this country with our mother, a sister, and myself in October of 1883. My brother John was then 14 years of age, and reached his twenty-first birthday on the 18th. My mother was a widow upon coming to America, my father having died a citizen of Bavaria. Three years later she married Andrew Knauss, a native of Germany, but for thirty-three years a naturalized citizen of the United States. On attaining my own majority I duly became an elector in accordance with the laws, and my brother John fully intended to do likewise. Before it became possible, however, [Page 500] for him to regularly take out his paper, lacking three months of being of age, my mother and stepfather went on a visit to relatives to Windsheim, Bavaria, and John accompanied them. There he was arrested and taken before the military court at Anspach and assigned to the Fourteenth Infantry regiment stationed at Nuremberg.

I do not know what the regulations of your high office are in such matters, nor do I know what information will be valuable in the case. I inclose an account of the case*, which was published in the Cleveland Plaindealer on August 19 and is a clear and correct statement of the circumstances so far as is known by us. If you consider the matter worthy of your notice and will kindly let me know what further information is necessary, I will be very happy to serve you.

I have, etc.,

George Haberacker.
  1. For this inclosure see inclosure to inclosure 1.