[Inclosure in No. 177.]
Mr. Coleman to
Freiherr Marschall
.
Legation of the United States,
Berlin
,
September 28,
1890
.
The undersigned, chargé d’affaires ad interim of
the United States of America, has the honor, acting under special
instructions from his Government, to request that his excellency
Freiherr Marschall von Bieberstein, imperial secretary of state for
foreign affairs, will kindly use his mediation in inviting the attention
of the Royal Bavarian Government to the facts below summarized of the
case of John Haberacker, a naturalized citizen of the United States now
performing enforced military service in the army of Bavaria.
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 be, married to a citizen of the United States, and
who might herself be lawfully naturalized, shall be deemed a
citizen.
-
“Sec. 2172. The children of persons
who have been duly naturalized under any law [Page 501] 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, be
considered as citizens thereof.
It has been held by the courts of the United States 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 the United
States, become citizens thereof 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 the United States, that
John Haberacker, upon the marriage of his mother to Knauss in 1886,
became a naturalized American citizen. That he should be treated as such
by the Royal Government of Bavaria, the treaty of the United States 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 the United States 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 the United
States to live, in 1883, with his mother, his only natural protector,
that country thereby became his domicile. The Government of the
undersigned is not informed that the law of Bavaria, in this regard, is
different from that of the United States. 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 the Government of the United States that the facts in this
case constitute such an uninterrupted residence in that 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 26th of
May, 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 appears to correspond 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 be tried and punished for nonfulfillment
of military duty.
In view of the foregoing facts and considerations, the undersigned begs
to give expression to the confident belief entertained by his Government
that the Royal Bavarian Government will be pleased to take steps looking
to Haberacker’s prompt release from his present enforced military
service, and avails, etc.
