Mr. Hay to Mr. Harris .

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.,

John Hay.
[Inclosure.]

Mr. White to Mr. Hay .

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

Andrew D. White.
  1. Note by the Department of State, July 17, 1900:

    “The British rule in this regard is prescribed by statute, seventh clause of the act 33 Victoria, chapter 14. All passports issued to naturalized British subjects are subject to the qualification mentioned in the statute and bear an indorsement in the following language:

    “‘This passport is granted with the qualification that the bearer shall not, when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of naturalization, be deemed a British subject, unless he has ceased to be a subject of that state in pursuance to the laws thereof, or in pursuance of a treaty to that effect.’”