File No. 763.72115/3237½
The Attorney General ( Gregory) to the Secretary of State
My Dear Mr. Secretary: On August 18, 1917, you transmitted to me a copy of a note from the British Ambassador,1 asking whether the United States authorities in this country regard a naturalized British subject of German birth as an alien enemy.
On August 24, 1917, I transmitted an answer to you stating that “section 4067, Revised Statutes, expressly defines natives of a country with which the United States is at war as alien enemies, and the President’s proclamation of April 6, 1917, was issued in strict conformity with the wording of the statute.” I also called your attention to the fact that at the conference held in your office on April 2, 1917, you concurred with me in believing that the policy of the statute was a wise one in treating a person, born in Germany and naturalized elsewhere, as an alien enemy, owing to the fact that the laws of the German Empire did not fully recognize the adoption of a new allegiance by a German naturalized in another country.
The question whether the word “native” included German-born, naturalized in other countries, was, as I recall, discussed at some length between us, and no doubt was expressed as to the meaning of the statute or as to the high advisability of the policy embodied in it. The exact phraseology of the statute is that—
Whenever there is declared a war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upward, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed, as alien enemies.
In my opinion the language of the statute is susceptible of but one construction. No qualification is attached to the word “natives.” On the contrary the use of the disjunctive conjunction “or “makes it clear that four distinct classes are being named. I cannot but believe that not only the letter, but also the intent of the statute, requires its application to all persons who have been born in Germany (other than American citizens) whether now naturalized in other countries or not.
You will note that the statute prescribes that they shall “be liable to be apprehended, restrained, secured, and removed, as alien enemies,” and the President is authorized to direct the conduct to be [Page 218] observed “toward the aliens who become so liable.” This language still further confirms my opinion that all aliens who come within the scope of the words “natives, citizens, denizens, or subjects,” of the hostile country, are liable to be treated “as alien enemies.”
The Department has, since April 6, 1917, construed the law to apply to all persons born in Germany other than American citizens. The matter has been presented to this Department by you again by letters of October 8, November 22 and December 7,1 in which you state that the question has arisen in connection with German-born who have become naturalized in Great Britain, Denmark and Argentina.
In your letter of November 22, you suggest that a reply be made to the British Government “that Germans who are naturalized in the United States are entitled to be regarded as American citizens, and reciprocally Germans naturalized in Canada are entitled to be regarded as Canadian citizens, and to be treated in either case as loyal until the presumption in this respect is weakened.”
If your suggestion merely applies to the administration of the statute by this Department, I see no objection to it as it is in line with the method of administration now practiced, but if it is intended as a statement of the views of this Government that the statute does not legally apply to naturalized German-born British citizens, then I cannot concur with it. The provisions of the President’s proclamation regarding the entry of German-born into this country, and the presence of the German-born in the District of Columbia, for instance, must be, in my opinion, equally applied to all German-born foreigners, whether naturalized British citizens or naturalized Mexican citizens or naturalized Swedish citizens, German born. To take any other position, would, in my opinion, be highly dangerous.
So far, therefore, as the question of law is concerned, I am satisfied that if privileges are to be given to German-born, naturalized in other countries, they must be so given by Congressional legislation amending the present statute.
I am equally satisfied, however, that the question is not really one of law, but rather of practical administration of the statute, and as the Solicitor General has already written to you, under date of September 20, 1917,2 “there is room for wide discretion in administering the act as thus interpreted. We should be slow to invoke it against one of German birth who is in good faith a naturalized citizen of a friendly government, and especially of one at war with Germany.” This wide discretion, as above stated, this Department has already exercised, and in various cases has treated liberally and issued permits [Page 219] to German-born naturalized in Canada where such treatment would not have been accorded to a German citizen. This liberal administration of the law and this discrimination between the different classes of alien enemies will continue to be exercised by this Department.
I call your especial attention to the fact that the statute as thus construed, makes it comparatively simple of administration for we avoid all difficulty which might arise from a misconstruction of the naturalization laws of foreign countries, and we also achieve a high degree of accuracy in ascertaining what constitutes an alien enemy, it being comparatively simple to ascertain the place of birth of any particular person, but in many cases difficult to prove nationality or citizenship.
The British Ambassador, in his memorandum of July 30, 1917, transmitted by the State Department to me, states that the protection afforded to German-born by United States naturalization papers “constitutes a serious menace to the welfare of the Dominion and the vigorous prosecution of the war in which both the United States and the British Empire are engaged. It will of course be remembered that the German Government does not recognize the naturalization papers of a born German subject, once the holder of those papers returns to Germany; and that such persons become automatically repatriated as German subjects as soon as they return within the confines of the German Empire.” If Germans, naturalized in the United States, constitute a menace to the welfare of the Dominion, it is difficult to see why Germans naturalized in the Dominion do not equally constitute a menace to the United States. I fail to see, therefore, why each nation may not safeguard itself against this menace by legislation. If Canada has not already enacted such legislation, it simply shows that this country, by enacting our statute of 1798, showed greater forethought and adopted safeguards against danger at an earlier period.
Respectfully,