Mr. Hay to Mr.
Harris.
Department of State,
Washington, July 19,
1900.
No. 96.]Sir: I have to acknowledge the receipt of your
No. 98, of the 27th ultimo, in further reference to the case of the
naturalized citizen Gustav Wolf Louis Fischer, whose expulsion from
Austro-Hungarian territory upon his return to his native place to take
up an apparently indefinite residence had been previously reported by
your No. 80, of March 21.
The grounds advanced by Count Lutzow in justification of the course of
the Austro-Hungarian authorities in decreeing Mr. Fischer’s expulsion
coincide nearly with those put forward by the German Government on many
occasions where a naturalized German, who by the acquisition of a
foreign citizenship procures legal immunity from military service or
from the penalties attaching to its nonfulfillment, has returned to his
native neighborhood under circumstances asserted to be prejudicial to
the interests of the State. The note addressed to you by Count Szecsen
on the 5th ultimo takes the same position. The similarity between the
Austrian and the German arguments in this regard has already been noted
in my instruction No. 79, of April 13, 1900.
[Page 23]
The case would offer no essential difficulty were
the circumstances of Mr. Fischer’s return to Austro-Hungarian
jurisdiction such as to suggest that he belongs to the objectionable
class of aliens whose expulsion for high political motives is conceded
to be the prerogative of a sovereign state. In the exercise of this
prerogative it is but reasonable that the expelling government should be
prepared to justify its action by showing to the alien’s government that
his presence in the land of his origin is, in fact, pernicious to the
public welfare.
The argument of the Austro-Hungarian Government is that Mr. Fischer,
having partly fulfilled his military duty by reporting for examination
and having been remanded for a later examination, thereby assumed an
obligation which he evaded by unpermitted emigration while still an
Austrian subject; and that, having secured immunity by naturalization
abroad, his return to his native city and residence among his former
countrymen less favorably situated than he is not only provocative of
discontent, but acts as a bad example, calculated, if often repeated, to
work positive harm to the defensive power of the state.
The weakness of this position is that it does not rest upon any averment
of offensive conduct on Mr. Fischer’s part which would justify the
individual application in his case of the right of expulsion, but,
rather, appears to lay down a general principle whereby the expulsion of
every American naturalized Austro-Hungarian, who was under admitted
liability to serve at the time of emigration, would be a necessary
proceeding under the general policy of the State. Such a sweeping
doctrine would to a serious extent neutralize the provisions of our
naturalization treaty with Austria-Hungary. That instrument, weighing
all the circumstances under which persons of military age might emigrate
without fulfillment of their obligations, discriminated between the
classes securing immunity by naturalization and those not so securing
it. It can not be expected that this Government will acquiesce in a
comprehensive enlargement of the nonimmune class by the ex parte act of
the other contracting party.
In the numerous questions of this nature which have arisen between the
United States and Germany, each case has been dealt with upon its
individual merits. No attempt, so far as I can recall, has been made to
enunciate a general doctrine like that now advanced by the
Austro-Hungarian Government. Certainly no such position has been
acquiesced in by this Government, tacitly or otherwise.
I observe that in Mr. Fischer’s case the exercise of the right of
expulsion is claimed to rest in “the extreme conditions under which
Fischer, who was still pledged to duties to the State in this country
(Austria), accomplished his naturalization in America, and also in his
return here to settle in Austria.” So far as this deals with the merits
of his case, it comprises two distinct propositions—his action prior to
naturalization and his action since. The first, as I have suggested, is
covered by the stipulation agreed upon by the negotiators of the
naturalization treaty, and involves no public turpitude on Mr. Fischer’s
part since his return. The second, by imputing to him the intention to
settle in Austria, brings his case within the
express terms of Article IV of the treaty, whereby indefinite residence
in the country of origin imports no disability and does not constrain
the returning emigrant to resume his original allegiance. Such
resumption is to be his voluntary act, and failure to resume original
citizenship can not be held to
[Page 24]
impute to him pernicious conduct, injurious to the welfare of the State,
without materially altering and expanding the stipulations of the
naturalization treaty in favor of one contractant and not in favor of
the other. If the two-years’ residence clause (as in Article IV of
convention of February 22, 1868, between the United States and the North
German Union) were found in the existing convention of 1870 between the
United States and Austria-Hungary, the question of Mr. Fischer’s alleged
settlement in Austria might afford a basis of discussion. But that
stipulation of the German convention, the existence of which was
doubtless known to the negotiators of the Americo-Austrian convention,
was not incorporated therein by them, probably for reasons
satisfactorily understood by them.
Article IV of the treaty of 1868 between the United States and the North
German Union provides that “if the German naturalized in America renews
his residence in North Germany without the intent to return to America,
he shall be held to have renounced his naturalization in the United
States.” This article further declares that “the intent not to return
may be held to exist when the person naturalized in the one country
resides more than two years in the other.”
Article IV of the treaty of 1870 between the United States and
Austria-Hungary provides that the emigrant from one State who has
resided in the other uninterruptedly for at least five years, and has
become a naturalized citizen thereof, “shall not, on his return to his
original country, be constrained to resume his former citizenship; yet
if he shall, of his own accord, reacquire it and renounce the
citizenship obtained by naturalization, such a renunciation is
allowable, and no fixed period of residence shall be required for the
recognition of his recovery of citizenship in his original country.”
Both treaties contemplate the possible resumption of original allegiance
by a returning emigrant. The North German treaty provides that if the
German naturalized in America renews his residence in North Germany
without the intent to return to America, he shall be held to have
renounced his naturalization in the United States. It further expressly
declares that the intent not to return may be held to exist after a
residence of two years.
But neither of these provisions is incorporated in the Austrian treaty.
Instead, it is declared that if the returning emigrant shall, of his own
accord, reacquire his original citizenship and renounce the citizenship
obtained by naturalization, such renunciation is allowable. It is added
that no fixed period of residence shall be required for the recognition
of the recovery of citizenship in the original country. It was the
evident intention of the framers of the latter treaty that the emigrant
returning to the country of his origin should not by mere residence
there recover his original citizenship. The treaty contemplates the
performance on his part of an act of renunciation of his acquired
citizenship on the one hand, and of reacquisition of his original
citizenship on the other. Whenever this is affirmatively done it may be
recognized, but not until then.
On the whole, as Mr. Fischer’s case stands, I fail to see that any
individual circumstances have been alleged to make his expulsion an
exceptional necessity for the protection of the Austro-Hungarian State.
The fact that his residence in the Empire until next November has been
permitted upon his application would suggest that if he be in
[Page 25]
fact a pernicious alien, his
perniciousness is not of an alarming or even pronounced character, and
strengthens the impression I derive from the correspondence that his
expulsion is not exemplary for specific cause, but is in the execution
of a general policy which does not chime with the provisions of the
existing treaty.
In the various German cases to which I have adverted, the postponement of
the expulsion for a reasonable time to allow the person expelled to
close up his affairs is generally obtained on the individual’s petition
and is followed by his voluntary departure from the territory of the
sovereign, thus virtually constituting an amicable disposal of the
matter by mutual consent. Mr. Fischer, it now appears, has asked that
the order of expulsion be postponed until September, and his petition
has been granted. This arrangement may be deemed to embrace a voluntary
engagement on his part to quit Austro-Hungarian territory by a given
date and he will be expected to abide thereby, thus disposing of his
particular case. You will so advise him.
Although Mr. Fischer’s case may be regarded as withdrawn from active
international discussion, the principles upon which this Government
rests in contesting the general claim of the Austro-Hungarian Government
in the matter of the expulsion of pernicious aliens for cause remains
unaltered, being in no wise prejudiced by Mr. Fischer’s action in
accepting a postponement of his departure. You should make our views
upon this point and upon the broader point of expulsion for individual
cause clear to the minister of foreign affairs.
In view of the frequent references to the course of Germany in analogous
cases, I inclose for your information extracts from a very full and able
report which, at my request, has been made to me by the United States
ambassador at Berlin, showing the practice prevailing in this regard in
the German Empire, and including a comparison thereof with the claim set
up by the Austro-Hungarian Government.
I am, sir, etc.,
[Inclosure.]
Mr. White to
Mr. Hay.
Embassy of the United States,
Berlin, April 21, 1900.
No. 1228.]Sir: I have the honor to receive your
instruction No. 1012 of March 2, inclosing copy of a dispatch from
the minister of the United States at Vienna, which reports the
banishment of certain naturalized American citizens from
Austro-Hungary, and asking, first, my views on the points raised by
the minister in said dispatch, and, secondly, for a report as to any
laws which may be in force in the States of the German Empire
relative to expulsion.
* * * * * * *
It seems well to add something regarding some more general
characteristics of a large class of cases which, in outward
appearance at least, are not unlike these—cases in which foreign
governments, and, in the matter now under consideration, the
Austro-Hungarian Government, may suspect a prostitution of American citizenship. Whether this feeling
of theirs be just in the present instance or not, it can not be
denied that American representatives abroad have constantly to be on
their guard against this evil, so injurious not only to proper
relations between our own Government and others, but to the good
name of our country. As to my own experience of it, which now covers
many years in various posts, I trust that I may be allowed to say
that my sympathies have always been and are now strongly with all
bona fide
[Page 26]
claims made by
American citizens of foreign birth for protection in the country of
their origin. Every German-American who, after acquiring rights as
an American citizen, has shown by using them that he appreciates
their value, and who, having done so, returns to his native country
for any legitimate purpose, has my fullest sympathy and commands my
most earnest efforts. Much of my time as minister at this post
twenty years ago, as minister at St. Petersburg at a more recent
date, and during my present stay here as ambassador, has been
devoted to such cases, and any efforts I have made in behalf of this
class of my fellow-citizens I have regarded not merely as a duty but
as a pleasure. It gives me satisfaction to say that I recall no case
in which the embassy has been unable to secure the friendly
attention of the German Government to cases evidently bona fide, and
I would regret to believe that the Austro-Hungarian Government would
not yield to proper representations in similar cases.
Of course the cases of young men of military age who, having secured
naturalization, return immediately afterwards to visit their family
and others present peculiar difficulties, and these difficulties are
frequently increased by their indiscretion and even by conduct to
which a much worse name might be applied. It is, of course, galling
to the military authorities of a nation, in which the military
service of all its sons is considered the fundamental condition of
national existence, to have young men who have disappeared just at
the military age reappear among their old comrades, who are going
through their military service, and display proofs of American
citizenship, which appear to the authorities to be in the nature of
a fraud. Still, even in these cases, difficult as they are, whenever
there is evident bona fides, and also a reasonably discreet conduct
on the part of the person returning, he has, as a rule, been allowed
to remain long enough to visit his relatives.
I, of course, do not defend the practice of ordering such person out
of the country; I would much prefer to have them allowed to remain
for the time named in the Bancroft treaties, but I state the case as
it undoubtedly appears to the German authorities, and I feel bound
to say that but for this exercise of what they consider not only a
right inherent in German territorial sovereignty, but as an
absolutely necessary safeguard to good order and even to the
national existence, I do not believe the Bancroft treaties would be
allowed to stand. Only recently a minister of the Crown argued to me
that, in the interest of Germany, those treaties ought never to have
been made, and it is hardly possible that we could ever obtain them
again on the terms on which Mr. Bancroft obtained them—at a time
when the North German Confederation was especially anxious to secure
the good opinion of the United States.
The German Empire in its present development would, in my opinion,
take a view much less favorable, and we should very likely have upon
us the old condition of things in which there was no acknowledged
right of German-Americans to remain in Germany. Under such
circumstances no American citizen of German birth could know whether
it was best for him to revisit his native land or not, no matter how
long he had been a citizen of the United States, and the inevitable
result would be not only unfavorable to trade, but exceedingly
injurious to anything like good relations between the two
countries.
In view of all these considerations, while aiding the applications of
all our American citizens of German birth who show good faith, I
have done what I could to resist all efforts to prostitute American
citizenship.
On this point let me remind the Department again of what it so well
knows, that such efforts to use American citizenship for unworthy
purposes are of constant occurrence. Hardly a day passes that there
do not come to this embassy persons who have made the briefest
possible stay in the United States, and demand passports clearly for
the purpose of passing their lives here free from all obligations
either to the country of their birth or of their adoption. Many of
these have not the slightest appreciation of their real rights or
duties as Americans, have no feelings in common with those of
American citizens, and some are not even able to write or speak the
English language. Their conduct makes it perfectly clear that if
they found more advantage of any sort arising at any time from their
old allegiance than from their new citizenship they would be quite
ready to resume the former. The more respectable of these seek
merely to promote their own interest or pleasure, not hesitating
apparently to take any oath which may be necessary to secure the
renewal of a passport. Others come for purposes even less
respectable, and some even for criminal purposes, as our records in
more than one case will show.
Under these circumstances, while advocating all effective measures
for the protection of bona fide American citizens of foreign birth
when they return to Europe, I am slow to advocate anything like
drastic measures likely to arouse ill feeling between our own
Government and any other and sure to render the securing of the
rights of bona fide American citizens of foreign birth when abroad
more difficult.
[Page 27]
It is often said that Great Britain is more prompt and energetic in
protecting her subjects than our country is in protecting her
citizens. So far as this assertion has to do with the protection of
British subjects of foreign birth in the country of their origin I
need hardly remind the Department that it is without foundation.
Great Britain never protects her foreign-born naturalized subjects
in the land of their birth; if they revisit it they do so at their
own risk. This is perfectly understood in every European capital and
has received an indorsement from no less an authority than the late
Chief Justice Alexander Cockburn, who, in his work on Nationality,
in treating of those cases where claims on the score of allegiance
are made by other governments on such British subjects as are said
to be under the obligations of a twofold nationality (as, e. g., by
virtue of naturalization), says:
“In this respect the Government of this country has acted, it must be
confessed, in modern times at least, with extreme forbearance and
caution, preferring to disappoint what might have been thought the
reasonable expectations of its subjects rather than advance
pretensions which might clash with the rights of other powers. In
the case of conflicting claims to the allegiance of individuals,
British statesmen appear to have applied the legal maxim ‘Melior est
conditio possidentis,’ and to have adopted the convenient doctrine
that the state in whose dominions the individual happened to be was
entitled to claim him.”1 (See Cockburn on Nationality or
the Law relating to Subjects and Aliens, p. 107.)
* * * * * * *
As to the second subject mentioned in your instruction, namely, “Any
laws which may be in force in the States of the German Empire
relative to expulsion,” regarding which a report is desired, I have
the honor to make the following statement:
The “law of expulsion” in the German Empire is exceedingly complex,
and may be most conveniently treated under the three main headings
given, as follows:
- (1)
- General principles.—These are to be
found in the various treatises by eminent jurists and
publicists on the subjects of “International law,” “Private
international law,” and “Constitutional and public law.”
Regarding this division of the subject, I assume that no
statement is required, unless, indeed, the Department
desires some account of the more recent enunciation of these
general principles from the German point of view, as given
in the very considerable number of recently published works
in Germany dealing with the “Conflict of laws,” and
especially with the “State law” of the various States in
their relation to the Empire since 1870, and to other
nations.
- (2)
- Treaty provisions.—These will of
course be found in the collection given under the title
“Treaties and conventions between the United States and
other powers, 1776–1887;” also any other treaty provisions
touching the matter, all of which the Department already
possesses.
- (3)
- Statutes, decrees, and regulations of
the German Empire and of the respective States
thereof.—It is with especial reference to this
division of the subject that I assume a report is
required.
I note that in Mr. Harris’s dispatch reference is made to the
Austro-Hungarian “expulsion law” (Imperial and Royal Law Bulletin,
No. 88), to which in one case is assigned the date of June 27, 1871,
and in another that of July 27 of the same year. This law,
presumably in force throughout the Dual Monarchy, while resting on
the basis of inherent sovereign right, enumerates the cases in which
the right of expulsion may be exercised, and prescribes the manner
in which it is to be carried out.
No similar law exists in the German Empire, nor am I aware of such a
law existing in any State thereof. The whole procedure in this
country regarding the expulsion of foreigners seems in a somewhat
confused condition and can only be rightly understood by reference
to the imperfect federal character of the Empire. Three different
kinds of expulsion may be recognized in the precedents afforded by
the recent history of Germany.
- First. Each of the German States still retains the sovereign
right of expulsion, so that a foreigner may, in certain cases,
be expelled from one State, but continue to
[Page 28]
reside thereafter unmolested in
another State of the Empire, his expulsion from the former only
having effect in the territory within which the authorities of
that State have jurisdiction.
- Second. In certain other cases where the reasons for expulsion
are such as would make the stay of the foreigner in any one of
the States of the Empire objectionable, Imperial laws have been
passed whereby an expulsion by the authorities of one State
becomes effective not only in that State but within the whole
Empire, thus effectually banishing the individual from
Germany.
- Third. There is another kind of expulsion which, though in
form identical with that last preceding, is so different in its
real nature as to warrant its treatment as a separate class,
namely, the expulsion by the Prussian authorities of persons,
either individually or en masse, for certain grave reasons of
state, as examples of which may be mentioned the expulsion of
Poles from certain German States, of Frenchmen and others from
Alsace-Lorraine, and of inhabitants of Schleswig-Holstein. These
expulsions have usually been carried out by Prussia or through
Prussian initiative, and take the second form above given, but
for reasons which concern not only Prussia but the whole of
Germany. When it is remembered that Prussia is the leading
member of the German Confederation, that the King of Prussia is
the German Emperor, that the chief functionaries of the Kingdom
are also leading officials of the Empire, and that an expulsion
by these Prussian authorities is given effect as an expulsion
from the Empire by virtue of Imperial laws passed for reasons of
the Imperial welfare, it will be seen that they are in substance
indirect expulsions by the Empire, though in form mere State
expulsions effective throughout the other States.
Referring to the first class above given, namely, expulsion by a
State from its own proper territory only, I take Prussia as an
example, and on referring to a leading authority on Prussian State
law I find the statement: “Measures of expulsion can be exercised
against foreigners, partly for certain punishable acts which have
been made the subject of judicial sentence, and partly as purely
police measures taken in the interest of safety and order.” (Rönne,
“Das Staats-Recht der Preussischen Monarchic” 2 Band, 2 Abtheilung,
sec. 381, p. 134.)
This is also doubtless a true statement of this principle as
contained in the State law of each of the other States of the German
Empire.
The distinction to be held in mind is whether the expulsion is to be
effective as a banishment—
- a.
- From the whole German Empire, or only
- b.
- From the territory of the expelling State.
The power by which the authorities of any particular State are given
extended jurisdiction to expel from the Empire is contained in
various Imperial laws and decrees. As examples of these may be
mentioned—
- 1.
- Certain sections of the Reichs-Strafgesetzbuch.
- 2.
- The Imperial law regarding the expulsion of the
Jesuits.
- 3.
- The Imperial law regarding the Social Democrats,
etc.
To sum it up, it may be said that, first, as regards the power of
expulsion the respective States exercise this right by virtue of
their inherent sovereign power and the usages sanctioned by
international law; second, that the procedure whereby it is given
effect is for the most part contained in “Administrative
Bestimmungen” and “Ministerielle Erlasse,” which, not being in the
form of public statutes and often embodied in secret orders of the
State and Imperial authorities, are not available for
examination.
Concerning the right of expulsion as well as the manner, the
procedure above indicated has been modified in certain cases by
special treaties, as, for instance, the convention between the
German Empire and Russia of February 10, 1894, for the exchange of
undesirable persons, subjects of either of the two countries, to the
other, respectively; also a convention with Switzerland bearing date
April 27, 1876.
Should the Department desire further and more exact information as to
the actual procedure in the matter of expulsion prevailing in the
various German States, the cases in which such expulsion is given
effect in the whole Empire, etc., a somewhat extended and careful
examination of the question would have to be made, and this would
necessarily require considerable time. Such an extended report,
however, has not appeared to be called for by the Department’s
instruction, and I therefore beg to submit simply the above
considerations.
I am, etc
