Mr. Olney to Mr. Jackson.

No. 561.]

Sir: I have to acknowledge the receipt of your dispatch No. 459, of January 29 last, in relation to the case of Mr. Emil B. Kauffmann, a naturalized citizen of the United States of Alsatian birth. In transmitting the correspondence had by Mr. Runyon with the foreign office on the subject, you invite attention to the circumstance that the German Government again takes advantage of the occasion to state its views regarding the nonapplicability of the Bancroft treaties to the province of Alsace-Lorraine, and you suggest the advisability of considering whether it be not desirable to negotiate a treaty on the subject of naturalization which should include the whole German Empire.

The peculiar relation of the Imperial territory of Alsace-Lorraine to the German Empire has on several occasions had extended consideration, with varying and not very satisfactory results.

The circumstances of the cession of these provinces as the result of the Franco-German war, invested them with a peculiar and exceptional status from the beginning. The war on the German side was waged by Prussia, with the states of the North German Union and the independent kingdoms as allies. During the interval between the preliminary peace of Versailles and the definitive treaty of peace of Frankfort, by which the cession was made complete, the states theretofore at war with France confederated their political existence as an empire, and it was to this empire that the French provinces were ceded.

[Page 188]

Alsace and Lorraine had obviously, as stated in a note of Prince von Hohenlohe to Mr. White, August 5, 1880 (Foreign Relations 1880, p. 444), at no time constituted a part of the North German Confederation or belonged to one of the South German States, and therefore did not enter the Imperial association as constituents. Their condition was rather that of domanial property in which all the confederated states possessed an undivided interest. It is upon this ground that the German position of non-applicability of treaties theretofore existing with the North German Confederation or the South German States principally rests.

The anomalous situation so created could not fail to attract early attention, and by instruction No. 569, April 14, 1873, Mr. Fish called Mr. Bancroft’s attention to the circumstance that the existing treaties with the several German States “are not coextensive with the limits of the Empire. The provisions of none of the existing treaties extend to Alsace and Lorraine, which form an integral part of the Empire and from which there has long been a large and valuable emigration to the United States, whose status deserves recognition and protection.” Mr. Bancroft was therefore instructed to propose an amendment of the existing naturalization treaties, reducing them to one uniform code of intercourse in that important regard, embracing the whole territory of the new Empire. (Foreign Relations, 1873, p. 280.)

Mr. Bancroft replied (No. 481, of 1873), discussing the entire question in the various and complex aspects it bore by reason of the existence of five separate treaties of naturalization with the several States subsequently confederated as an Empire. Mr. Bancroft’s general conclusions were that the existing treaties sufficiently met the cases likely to arise in the several States of the Empire, and especially so as the autonomous reservation of legislative and administrative rights in each State made the disposal of questions of naturalization arising with them dependent upon the lex loci, which was not reducible to a common standard: throughout the Empire. In the course of that reply Mr. Bancroft said,

The Department raises the question as to the two provinces of Alsace and Lorraine and I am able to answer that the Government is not disposed to deny to emigrants from those two provinces the benefits of the treaty with the North German Union, to which I desire to believe they have a right. But on this point I have addressed to the Department a separate letter. (Foreign Relations, 1873, p. 287.)

The separate letter thus mentioned is Mr. Bancroft’s dispatch, No. 480, of May 8, 1873, reading thus:

Alsace and Lorraine having been annexed to the German Empire by treaty with France, I hold that the naturalization treaty ratified with the North German Government holds good with regard to both of them, yet as the North German Union was already merged in the German Empire before the cession of the two provinces was completed, it may be better to obtain from the German Government, in some written form that shall perfectly bind the Government, an acknowledgment that the benefits conferred on our adopted German citizens by the naturalization treaties shall equally extend to emigrants from Alsace and Lorraine. If you will permit me to do this, I have no doubt I shall be able to obtain from this Government such a declaration as shall be perfectly satisfactory to all parties interested in the matter. (Not printed. MS. Dispatches, Germany, Vol. III.)

Mr. Fish, in reply to these two communications, instruction No. 583, June 4, 1873, repeated his position that a new general treaty for all Germany in place of the several conflicting treaties was desirable, and indeed necessary. While much regretting that the Government at Berlin was not disposed to listen favorably to the suggestion, notwithstanding what Mr. Bancroft had said on the subject, Mr. Fish still thought “it would be better to remove these differences and to have [Page 189] but one rule for all Germany.” Mr. Bancroft’s proposal to procure a temporary declaration from the Imperial Government touching the applicability of the North German treaty to Alsace and Lorraine did not find favor in Mr. Fish’s eyes. He said: “Meanwhile, it is not wise to take any half-way measure as to Alsace and Lorraine.” (Foreign Relations, 1873, p. 293.)

Here the matter rested until 1880, when renewed correspondence occurred on the subject. In the interval the military cases affecting naturalized Alsatians and Lorrainers had been disposed of in accordance with the provisions of the North German treaty, thereby tacitly admitting its application and virtually applying it to naturalization questions arising in those provinces. In replying to Mr. White’s demand for the release of John Schehr, a native of Alsace, Prince Hohenlohe based refusal upon the non-applicability of any existing treaties between the United States and the German States to the provinces of Alsace and Lorraine, and the consequent subjection of such cases to the local laws of the provinces alone.

Mr. White replied at considerable length, urging a reconsideration of this decision, in view of the circumstance that the treaty of 1868 had been applied to Alsace and Lorraine and acted upon by both the German and American Governments during the whole of the period which had then lapsed since the incorporation of those districts into the Empire. For this note you may consult Mr. White’s dispatch No. 146, September 1, 1880. (Foreign Relations, 1880, p. 441, et seq.)

Mr. Evarts approved Mr. White’s position by instruction No. 138, October 7, 1880. No definite acquiescence therein appears to have been vouchsafed by the Imperial Government, but thereafter two of the cases then in dispute, those of Aaron Weill and Alois Gehres, were settled by pardon and remission of fine, and in reporting this result Mr. Everett, then chargé de affaires, in his dispatch No. 4, November 22, 1880, said:

I venture to think, therefore, with these two eases as precedents, that no further difficulty will be made by the German Government in the settlement of sound cases of returning Alsatians, and that the refusal to extend the benefit of the treaty of 1868—with the North German Union—to Alsace-Lorraine originated in that province and has not been indorsed by the ministry of state in Berlin.

In 1883 consideration of the question was revived by reason of the agitation then mooted in Congress in favor of a new naturalization treaty between Germany and the United States, aiming to secure for returning naturalized Germans greater or more assured privileges of residence.

Mr. Sargent, in his dispatch No. 99, January 22, 1883, discussed the general situation and incidentally called attention to the fact that the imperial law of January 8, 1873, specifically extended to Alsace and Lorraine the North German law of June 1, 1870, concerning the acquisition and the loss of confederate or state citizenship. By that law citizenship could be lost only by discharge upon petition, by decree of the authorities, by a ten years’ residence abroad, or in virtue of a treaty upon five years’ residence accompanied by naturalization abroad. Mr. Sargent thereupon remarked:

As the five-years’ clause requires to be vitalized by treaty, and was probably intended as a sanction or affirmation of the American treaties, it would not be of force in Alsace-Lorraine unless the treaties can be held to apply to these late acquired provinces. But the existence of this feature in the law did not prevent the act of extension of the whole law to Alsace-Lorraine, by which the implication might arise that Germany was ready to extend the treaties. (Foreign Relations, 1883, p. 332.)

The movement toward the negotiation of a new general naturalization [Page 190] treaty with the Empire did not, however, take shape, but as late as August 23, 1883, the German Government removed the fine and attachment from Xavier Ehret, a naturalized Alsatian, upon whom these penalties had been imposed in his absence.

In 1887 a case arose affecting one Albert Bernhard, a citizen of the United States, who emigrated from Alsace-Lorraine in 1872. This case was somewhat peculiar, Bernhard having emigrated while the French civil code was still in force in Alsace. When he acquired citizenship, the German law of June 1, 1870, introduced as above stated into Alsace-Lorraine in 1873, prevailed for the inhabitants of those provinces. The German Government contended that Bernhard had not complied with these provisions, having neither obtained a dismissal from his German allegiance nor remained abroad ten years, and that he was therefore to be treated as a German subject. As this contention ignored the five years’ treaty clause, the reply of the German Government appeared to assume non-applicability of our North German treaty to Alsace-Lorraine. In an instruction sent by Mr. Bayard to Mr. Pendleton, No. 236, June 28, 1887, Bernhard’s case is very fully discussed and incidentally the question of the applicability of the existing Bancroft treaty to Alsace-Lorraine is treated. Mr. Bayard said:

So far from this Government acquiescing in the view that the Bancroft treaty did not cover Alsace-Lorraine, Mr. Evarts on December 30, 1882, in reply to a dispatch form Mr. White in Loeb’s case in which an arrest had been made on the basis of such non-applicability, wrote as follows: “This Department fully approves of Mr. White’s action in reference to Mr. Loeb’s case, and, moreover, heartily concurs in the view expressed by the minister that this Government can not assent to the doctrine of the non-applicability of the treaties of 1868 to Alsace-Lorraine. You will therefore continue to discreetly but firmly press Mr. Loeb’s case upon the attention of the Imperial German Government until a favorable disposition of it is secured.” As far as I can learn from the records of this Department the German Government never insisted on final action adverse to citizens of the United States, based on the assumption that the Bancroft treaty was not applicable to Alsace-Lorraine. It is hardly necessary for me to remind you how serious would be the consequences if such a position should be conceded. The United States in a case in which the position of the parties in respect to such extension of treaties over the German Empire was reversed took the ground, in response to the application of Germany, that such extension could not be contested. * * * The United States have never denied the applicability of all treaties executed by them to territories acquired by them subsequent to the date of such treaties. On the hypothesis that territories annexed by a sovereign are not bound by the treaties previously entered into by him, California, annexed to the United States by the treaty with Mexico of 1848, would not be subject to the provisions of the treaty with Prussia of 1828. It is difficult to suppose that Germany would insist on a construction which would divest her, so far as concerns the California coast, of the valuable commercial rights conferred on her by that treaty and would deprive her consuls at Californian ports of the important prerogatives which that treaty gives. The very onesidedness of such a construction discloses its incompatibility with the principles of justice as well as of international law. (Foreign Relations, 1887, p. 394, et seq.)

From this time until the present no formal discussion of the question is found, although in various cases the German assertion of the non-applicability of the treaties to the annexed Reichsland has been advanced with more or less distinctness. While no overt contestation of that position has been made by this Government, the foregoing review shows that for many years it has withheld formal confirmation of Mr. Fish’s apparent admission that the treaties did not so apply. Your present dispatch is the latest and most formal announcement of the German contention. While on the one hand it may be said that the attitude of the United States has not been uniform, involving a reversal of the position assumed by Mr. Fish in 1873, it is clear, on the other hand, that until very recently the German attitude has been equally contradictory, the treaties having been virtually applied to Alsace-Lorraine during many years.

[Page 191]

The question has not, however, been formally revived and presented by this Government of late, owing to the prospect of an early incorporation of Alsace and Lorraine into the Empire, either as constituents or as part of the territorial domain of one of the present constituents of the Empire. With such incorporation, of course, the question would find its ready disposition, either by the obvious and incontestable extension of any treaty between such incorporating State and the United States, or by express conventional arrangement which would then become proper and necessary.

The new ambassador to Germany will, as soon as conveniently practicable after reaching his post, make an examination of the general question, with a view to ascertaining whether the difficulties which Mr. Bancroft discerned in 1873 in the way of negotiating a general treaty of naturalization embracing the whole German Empire still exist, or if existent are removable. As to this the Department is unprepared at present to express an opinion. But with regard to the anomalous and peculiar position of Alsace and Lorraine, while still holding, as it must, that no sovereign government can be exempt from existing treaty obligations in respect of territory acquired by it, and believing that it is incumbent upon such sovereign to devise practical methods by which existing treaties may apply to such annexed domain, it is not indisposed to recognize the fact that in practically dealing with the questions involved exceptional difficulties may be found. It is evident, for instance, that existing treaties, even if held applicable to the Reichsland, would not find distinct application in the case of a native of Alsace-Lorraine who had emigrated while those provinces were under French rule, and after acquiring citizenship in the United States might return to them subsequent to their German annexation. So, too, the German position would seem, upon analysis, to be somewhat anomalous in respect to a native of Alsace or Lorraine emigrating and becoming an American citizen and subsequently visiting another State of the Empire with which the United States have positive stipulations in regard to the rights of naturalized subjects.

This Government can hardly be expected to advance or admit the proposition that our existing treaties of naturalization are not applicable to an Alsatian or Lorrainer in whatever part of Germany he may be found. The German contention is essentially local—based upon the peculiar relation of the annexed territory to the Empire—and rests upon the paramount independence of the laws of Alsace and Lorraine alone in the absence of any convention binding those particular districts. This Government can not be expected to assent to any possible proposition that the local legislation of Alsace and Lorraine is paramount and executable in all the other constituent States of the Empire to the supersession of our treaties with those States. This consideration is not, however, advanced by way of argument or protest, but simply as illustrating some of the difficulties environing the present situation of Alsace-Lorraine, under which that territory seems to have the remarkable status of an independent State, belonging to an Empire, controlled as to its internal affairs by the legislation of the Imperial Parliament and yet not represented therein, nor responsible for its conduct as an independent State toward other powers. As was aptly said by Mr. Bancroft in his dispatch No. 230, June 5, 1871, at the time when the bill was pending in the Imperial Parliament for establishing a government in the new province of Alsace and Lorraine:

Under the old German Empire the free States with their domain stood directly under the protection of the Emperor. In theory Alsace and Lorraine form a district [Page 192] belonging neither to Prussia nor to any other of the German States, standing directly not under the King of Prussia, but under the Emperor of Germany. An exact conformity of the old precedents would make of them a republic under the protectorate of the Emperor. (Foreign Relations, 1871, p. 395.)

As those provinces now stand and have stood for years, they seem to enjoy a strangely admixed privilege of autonomy, protective control, and international irresponsibility.

I am, etc.,

Richard Olney.