Mr. Hill to Mr. White.
Washington, July 26, 1901.
Sir: Your No. 1665, of the 10th instant, reports that Paul N. Friedlaender, a native of Germany, was naturalized at Chicago May 28, 1897, after having resided in the United States for a full term of five years; that his mother was called upon about a year ago to pay a fine on his account, and that the embassy had addressed the foreign office asking the refunding of any money already paid on account of his failure to [Page 182] report for military service and the cessation of all proceedings against him which may have been taken on the same account and his recognition as an American citizen.
In the second paragraph on the first page of your dispatch you state that Friedlaender had permission to emigrate from Germany, while in the fourth paragraph of the second page you state that “his offense was merely emigration without permission.” You further state that Friedlaender had been sentenced to pay a fine or suffer imprisonment by the judgment of a local court April 10, 1900, on account of his unauthorized emigration; that the German foreign office has advised that Friedlaender petition the Emperor directly for a vacation of the judgment or remission of the penalty, and suggested that in order to expedite matters his petition be supported by the embassy, which the latter declined to do for the reason that the case is governed by the naturalization treaty of 1868 and by the two ministerial decrees of July of that year, and that since the Prussian minister of justice has decreed that as the penalty for punishable emigration is not to be executed there would appear to be no reason for a formal petition of pardon.
To this the foreign office replied, advising that Friedlaender send in a petition before coming to Germany, as otherwise a demand for payment will be made upon him and difficulties for him will arise therefrom, as then the remission of the penalty will not at that time have been introduced in the official way.
You express doubt whether you should give support to any petition by Friedlaender, as by so doing it might be construed as an admission of the correctness of the position taken by the foreign office, rendering it necessary to pursue the same course in respect of every American citizen of German origin desiring to visit his former home.
The naturalization convention of 1868 provides:
- Article I. Citizens of the North German Confederation who become naturalized citizens of the United States of America and shall have resided uninterruptedly within the United States five years shall be held by the North German Confederation to be American citizens and shall be treated as such. This article shall apply as well to those already naturalized as those hereafter naturalized.
- Article II. A naturalized citizen of the one party remains liable to trial and punishment for an action punishable by the laws of his original country and committed before his emigration, saving always the limitations established by the laws of his original country.
- Article IV. If a 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. * * * 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 country.
The circular of the minister of justice, dated July 5, 1868, states that it was the prevailing intention of the treaty that in conformity with its second article the punishment incurred by punishable emigration is not to be brought to execution on occasion of a return of the emigrant to his original country if the returning emigrant has obtained naturalization in the other country in conformity with the first article of the treaty.
The circular of the minister of the interior, dated July 6, 1868, states that it was the prevailing intention of the treaty that in conformity with Article II of the treaty the punishable action committed by the unauthorized emigration of a citizen of the confederation to the United States of America should not be made the ground for a penal prosecution [Page 183] upon the return of such person to his former country after absence of not less than five years, and that the punishment for such action, even though already legally declared, should not be consummated if the person has acquired in America the right of citizenship in conformity with Article I of said treaty.
A State has the unquestionable legal right to regulate under penalties either the emigration of its subjects or the immigration of aliens, as also to punish its nationals for failure to report for military service, except so far as restrained by treaty (1 Rivier, 269; 2 Wharton, sec. 171).
A State does not, however, necessarily take official notice of the naturalization of its subjects as citizens of another State. Consequently, in the absence of such official knowledge, it may, if authorized to do so by its own laws, proceed against them by judicial trial and condemnation, even in their absence. With such treatment by it of its own subjects no other State has any concern.
As the case is stated, Friedlaender was a native-born German subject and appears to have been condemned as for punishable emigration. If he had received permission to emigrate, the judgment was not unlawful, though erroneous in point of fact, unless the fact was shown at the trial; if he had not received such permission, it was not unlawful unless at the trial proof was submitted showing his naturalization in the United States and his compliance with the terms of the treaty. As the case is stated, it does not appear that the judgment was unlawfully rendered, although erroneous. And as the German court or Government would not know this error without evidence of the facts which brought Friedlaender within the exemption of the treaty, it is entirely proper that he should take steps before the court to have the judgment vacated and set aside, on proof of the facts which would have constituted a good defense of the action if they had been presented at the trial, or that he should petition the Emperor to vacate the judgment, submitting the facts and proofs necessary to show that the judgment was in fact given in” violation of the treaty.
While this may result in some inconvenience in practice, it is the course pursued in the United States in analogous cases. If a judgment by default has been rendered against a person during his absence, provision is usually made for his application to the court, within a given period, to have the judgment set aside for error of law or fact. If a person has been condemned as a criminal, he may have judicial proceedings to correct an erroneous conviction, and in the last instance may appeal to the Executive to grant a pardon.
The advice of the German foreign office that an appeal be made to the Emperor to set aside the judgment on the grounds stated in your dispatch, so far from involving a concession that the conviction was not erroneous in fact, may be accepted in the sense that it was erroneous because rendered in violation of the treaty, as authentically interpreted in the circulars. A pardon would be inappropriate as implying a guilt which is shown not to exist in fact, yet if this is the only way the Emperor can lawfully proceed, the proceeding should be accompanied by you with this interpretation.
The better course in all such cases is for the naturalized American to have proceedings instituted in the proper court to vacate the judgment, if such remedy is given by the local laws; and in all cases if they have notice they should make defense by counsel if allowable to [Page 184] suits of that character while pending. They should not burden the embassy by asking it to relieve them from the consequences of their own neglect to defend; but it is, of course, proper for you to render them all necessary assistance, even when they could have avoided trouble by timely attention to their own interests.
I am, etc.,
Acting Secretary.