[Inclosure in No.
363.—Translation.]
Foreign
Office,
Berlin,
December 1, 1891.
The undersigned, replying to the note of the 20th of April last (F. O.,
No. 211), has the honor to inform the envoy extraordinary and minister
plenipotentiary of the
[Page 522]
United
States of America, Mr. William Walter Phelps, that the Royal Bavarian
Government has made a renewed and thorough investigation of the case of
John Haberacker, hut finds no reason for discharging him from the
Bavarian army.
The Bavarian Government is guided in this by the following
considerations:
According to the treaty of May 26, 1868, subjects of the Kingdom of
Bavaria are to be regarded as Americans only when they become
“naturalized” citizens of the United States of America and have resided
in that country uninterruptedly for five years. As only the latter of
these preliminaries has been performed, it can not therefore he admitted
that Haberacker was naturalized in America.
Under title xxx of the Revised Statutes, headed
“naturalization,” the manner in which the naturalization of foreigners
is to be effected is determined, and in section 2165 it is expressly
stated that this is to be done as prescribed therein “and not
otherwise.” True, it is stated in section 2172 that minor children of
persons duly naturalized are to be regarded as American citizens; but
if, on this account, Haberacker’s personal naturalization would not be
required, it would in all events be necessary that his mother at least
had become naturalized. But even this is not the case.
Haberacker’s mother became an American citizen by her marriage with an
American citizen, according to section 1994 of the Revised Statutes.
This legal provision, can not, however, be regarded as a special manner
of naturalization. It is not to be found in title xxx of the Revised Statutes, headed “naturalization,” but, as
is the case with section 1993, in title xxv,
headed “citizenship.” In the envoy’s note above referred to it is
expressly stated that section 1993 is not a part of the American
naturalization laws, and in no wise applies to naturalization. The same
must be said of section 1994.
If the word “naturalized” had been omitted in the treaty of 1868, the
above section might perhaps apply to a case such as that now under
consideration. This view is debarred by the express use of that word,
and it could hardly have been thought of when the treaty was negotiated.
For, according to the principles of American law—which in this instance
are precisely the same as the German—the marriage of an American woman
to a foreigner can not deprive the children of her first marriage of
their American citizenship.
From this standpoint it amounts to nothing that Haberacker, according to
American decisions, is regarded as an American citizen. It is enough
that he did not become a “naturalized” citizen of the United States.
The undersigned begs that this decision of the Bavarian Government be
communicated to the American Government, and at the same time avails,
etc.
