Mr. Wharton to Mr.
Phelps.
Department
of State,
Washington, September 8,
1890.
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.
288 St.
Clair Street,
Cleveland,
Ohio, August 19, 1890.
(Received August 21.)
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,
[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.
288 St.
Clair Street,
Cleveland,
Ohio, August 23, 1890.
(Received August 25.)
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.,
