No. 136.
Mr. Bancroft to Mr. Fish.
Berlin, May 8, 1873. (Received May 31.)
Sir: I have received your No. 569. The instructions of the Department I always endeavor to execute in strict accordance with its wishes and directions. In the present case I couple this instruction with your No. 560, which calls upon me for my opinions on the best manner to deal with the subjects treated of in No. 569, and regard, therefore, the latter number not as a final delivery of your judgment, but as an invitation to me to state my views on the subject under deliberation from the lights which I may have obtained here, and so to reserve the whole for your final decision.
I am unable to find in the treaties of naturalization all the defects which are suggested. On the contrary, I think that the most important of them do not exist and that others are of no practical moment. I ask leave, therefore, to narrate the circumstances under which the treaties were formed, and then to make one or two explanations as to the established interpretation of the treaties as made unanimously by the German authorities.
Our German fellow-citizens suffered from the German laws, which, not taking note of their adopted nationality, held them still subject to the laws of Prussia and the other German states respectively, so that if one of them who had not performed military service returned to his [Page 285] original country, lie was sure, if recognized, to be fined and held to be still liable to military duty.
For many years the United States had made attempts to procure, by agreement or by treaty, a mitigation of the Prussian military laws for their adopted German citizens, but had never succeeded in gaining the offer of anything more than the benefit of a Prussian law which set forth after what length of continued absence a Prussian should be considered as having lost his original nationality. In other words, nothing was conceded, although, through the ability, fidelity, and perseverance of my predecessors, the government had come to consider the question as one which it was desirable to settle.
This was the state of things when I arrived at Berlin. Taking advantage of the welcome heartily extended to a new comer, and an awakening inclination to cultivate nearer relations with the United States, I devoted myself immediately to this subject, which was of vital importance to the comfort of the millions of Germans who had adopted our country as their own. Deviating from the compromising system which had thus far guided our negotiations on the subject. I had in view to obtain for them absolute and total relief from the burden which had hung so heavily upon them, and to establish for them the complete and unqualified right as American citizens to visit or inhabit their native country free from all solicitude on the subject of military service.
I perceived at once that there was no chance of success in the negotiation so long as the question moved within the limits of the laws of the North German states, and the relief asked for appeared only as an exceptional remission of penalties established by exceedingly numerous stringent German laws. Those who were compelled to serve in the German army, and they formed all the people, were exceedingly jealous of any who escaped from that service.
The foreign office would hardly be willing to undertake to modify the Prussian military laws without taking the advice of the ministry of war, and its advice was sure to be adverse, and the ministry of the interior pronounced itself against the modifications which had been desired in the most energetic language.
I saw there was no chance of success except by an entirely new form, as one relating to the natural and inherent right of man to choose for himself the land of his dwelling-place. The Prince of Bismarck is, by nature as well as by observation, study, and reflection, ready to receive liberal ideas and to reduce them to practice when the time for it appears to have come. His conservatism consists in the wish that these reforms should be carried out under the lead of the conservative party, and his preference has always been to introduce through the conservative party the reforms which he undertakes, if they would but give him their countenance.
The idea of the natural right of emigration was from the first received by him with favor. It was also sure to be in itself acceptable to all branches of the liberal politicians of Germany. Moreover, it was an idea which, though never explicitly enounced in law, lay in the minds and habits of the German people from the time of the Reformation, when religious persecution compelled so many Protestants to leave their homes; and it had found some recognition, though a very imperfect one, in the treaty of Westphalia. But now, if the natural right of emigration could be affirmed by treaty, with the full recognition of all the consequences of acknowledging that right, the point for our German adopted citizens was won in its fullest extent. The wishes and instructions of your predecessor coincided exactly with my own judgment to press [Page 286] forward and settle this question without the delays and dangers that would attend a complex proposition which would in all probability have defeated our design. So I made it my rule simply to establish the right of emigration as an inalienable and natural right, not limited by any duty to the original government except where the performance of that duty had been formally initiated. Of this principle I was so happy as to obtain the recognition in Berlin, contrary to the expectation and prediction of every one of my colleagues at Berlin. Indeed, I was the only one accredited to the North German government who had confidence that I should succeed. The negotiation was powerfully aided by the clear perception and strong wish and paramount influence of the chancellor of North Germany, who saw and assented to the principle and its consequences, and next to him by the excellent sense and judgment and friendship to our country of Mr. Von Philippsborn, the ministerial director of one branch of the foreign office.
No sooner had the treaty received the sanction of the Senate of the United States on the one hand, and of the North German Parliament on the other, than I left Berlin to renew the same negotiations in those German states which were independent of North Germany. I was aided by being addressed to those powers with the rank of plenipotentiary, which was a mark of respect to their independence, and gave me readiest access to the sovereigns and their ministers. I adhered steadily to the principle of the natural right to emigrate, and to the consequences which flowed from that right. I had carefully studied the laws of the several states in so far as they bore upon my object. I resisted every reference to them which would interfere with that object, with unyielding perseverance. This being conceded, I took care not to involve myself in useless cavils at their own domestic laws, where they, did not in the slightest degree conflict with the great purpose of our Government. This principle of the natural right to emigrate is incorporated into every one of the treaties with the four South German powers with logical strictness and clearness, and without the shadow of a compromise. At Stuttgart it was insisted that the unqualified right to emigration should cease in the autumn, that period of the year when the liability to be called into actual service under the law of Wurtemberg began. I claimed that the free right to emigrate should continue not merely to that date in the year when they became liable, but should continue to that later period in the spring of the following year, when the summons should have actually been issued. “You propose to us a treaty,” said they, “in which you ask that every concession be made to you, and you offer to us nothing in return,” and there was imminent danger that the negotiation would be broken off, unless this modification were admitted. But at Stuttgart, as at Berlin, this part of the question, though with the greatest difficulty at the former place, was taken out of the reach of the local law, and regulated according to the law of nature and nations.
So I was able to send home treaties from the four powers coinciding exactly in principle, and in the consequences to be deduced from the principle, with the treaty with North Germany.
The weeks during which I was engaged in those negotiations, not withstanding the labor which was crowded into them, were made some of the pleasantest of my life by the never-failing courtesy and friendliness of the sovereigns and their ministers, manifested toward me personally and toward my country.
After this historical statement I beg leave to recur to the several points in which defects in the treaty are suggested, and I hope to be [Page 287] able to explain to the Department that in every important particular the defect has no real existence.
1. Under the letter
- (a)
- The Department raises the question as to the two provinces of Alsace and Lorraine, and I am able to answer that this 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.
- (b)
- There are five treaties in operation, not four, and it is quite true that they operate only each within its own territorial sphere. This is not a defect, but a necessary incident to the fact that the five powers were, each for itself, absolutely independent.
- (c)
- The Department next suggests the question whether the most important one “of the treaties is entirely silent as to past acts,” and here I am able to assure the Department that the phrase in which the words “who become” are used is understood to be a description of persons, and to include past, present, and future. Moreover, the rule of international law in interpreting treaties made and signed in two languages is, that the words in the one language are explanatory of the words in the other, or, to use the words of the Chancellor Bismarck spoken in the North German Parliament in the debate preceding the approval of the treaty, (“Ausserdem declarirt sich der Text der einen Sprache durch den Text der andern Sprache volkommen authentisch,”) “Besides, the text of the one language explains itself with perfect authenticity by the text of the other language.” So that if a doubt cleaves to an expression in the one language, it is entirely removed if the expression in the other language is clear. In this case the German words, which are the treaty as much as the English words, are “geworden sind,” so that it is absolutely certain that the treaty with North Germany is not silent as to past acts, but, on the contrary, both impliedly and expressly includes them. On this point all the five treaties, as interpreted and as intended to be interpreted, agree exactly.
- (d)
- The courts of the United States at first decided that the required residence of five years before obtaining citizenship must be absolute, and afterward the laws of the United States and the decision of their courts modified this principle. The same vagueness that now attaches to the laws of the United States attaches to the German treaties; nor more nor less. There was no protocol with North Germany, but the treaty was explained in Parliament by the North German Union, and the Bavarian negotiator of the Bavarian treaty simply inserted Count Bismarck’s words in the Bavarian protocol, making no difference, and intending to make no difference, between the two treaties.
2. It is true that the treaties with the four South German states expressly add in words that the returning emigrant shall be safe from punishment in all cases when a resident citizen enjoys such an immunity, but those forms of remission of liability to punishment, other than that of limitation, exist only by public acts, and are as such enjoyed by everybody, naturalized or native citizen of a foreign country, who comes to Germany. That the North German treaty includes every act limiting punishment is the official intepretation of the treaty. The co-referee, to whom the treaty was referred, uses the following-language:
[“Werm das heimische Gesetz wegen Verjährung oder aus irgend einem andern Grande keine Strafe erkennt, so kann eine solche auch niclit eintreten.” “When the law of the country awards no punishment, whether on account of lapse of years or for any other cause, no such punishment can take place.”
This is the way in which the treaty was understood by the chancellor of the North German Union, by Mr. König, who made the treaty with me, by the German Parliament, and indeed by everybody in this country. On this point the five treaties are identical.
Not the Bavarian protocol only, but that of Darmstadt formally interprets the second article as securing the emigrant against punishment for the act of emigration itself. This protocol is but an interpretation, and a very essential and correct one. I had taken care to introduce the principle in the treaty itself with North Germany perfectly, clearly, and without ambiguity. The North German plenipotentiary might hesitate to put forward too glaringly the principle which it contained; but when it came to the interpretation of the treaty before the German Diet, Mr. König, speaking for the North German government, and in the presence of the chancellor, expressed himself as follows:
“Es ist ferner gefragt worden, ob der Artikel 2 auch den Fall einschliesst, wenn Jemand durch die Auswanderung selbst die Gesetze seines bisherigen Vaterlandes verletzt, also namentlich, wenn er sick durch die Auswanderung der Militairpflicht entzieht. Eben diesen Fall hat der Artikel decken sollen, und es wird also ein Deutscher, welcher in Amerika sich 5 Jahre aufgehalten und dort das Bürgerrecht erworben hat, bei der Rückkehr nicht mehr zur Untersuchung und Strafe wegen unerlaubter Auswanderung gezogen werden.” “The German who has resided live years in America, and has there acquired the rights of citizenship, canon his return no longer be subjected to inquiry and punishment on account of emigration without leave.”
The co-referee of the German Diet spoke to the Diet as follows:
“Ich komme nun zu dem zweiten Artikel. Das ganze Schwergewicht liegt in diesem zweiten Artikel und zwar in dem kleinen Wörtchen ‘vor.’ Wer nicht gewohnt ist, Verträge zu lesen, wird schwerlich, wenn er nicht die Motive zur Hand hat, verstehen können, was eigentlich dieser Artikel meint. Es heisst darin, bei Rückkehr eines naturalisirten Bürgers in seine Heimath solle er wegen Verbrechen, die er ‘vor’ seiner Auswanderung verübt hat, bestraft werden können; er darf also nicht bestraft werden wegen Verbrechen, die er durch die Auswanderung begangen hat, und gerade die Verletzung der Militairpflicht erfolgt erst durch die Auswanderung selbst.” “The whole significance of the treaty lies in this second article and in the little word ‘before.’ The article means that on the return of a naturalized citizen to his home he can be punished only for punishable acts committed before his emigration. He therefore cannot be punished for anything that he may have done by emigration, and the violation of military duty takes place only by emigration itself.”
Dr. Lowe, in the debate, addressing the chancellor, said:
“Aber das möclite ich bestimemt feststellen, dass der Herr Bundeskanzler zu meiner Freude sich dahin erklärt hat, dass die Verfolgung wegen unbefugter Auswanderung nicht eintreten kann.” “This I wish most particularly to establish, that the chancellor of the union, to my joy, has declared himself to this extent, that prosecution on account of unauthorized emigration cannot take place under any circumstances.”
Upon this the president of the Diet awarded the floor to the chancellor, and Count Bismarck rose and said:
“Ich gebe diese von dem Herrn Vorredner gewünschte Erklärung.” “I give the declaration desired by the member who spoke last.”
Thus the five treaties are on this point absolutely identical. The chancellor, in granting us the treaty, designed to grant us all the relief that we asked for.
It is quite true that Baron Von Treydorf, one of the very best friends to the United States, and one of the ablest lawyers and statesmen of Germany, desiring to make the treaty so clear that it should need no protocol, inserted the full interpretation of the second article in the body, of the treaty itself, but it added to the treaty nothing at all and subtracted nothing.
3. As it regards recovering German citizenship by a German who has [Page 289] become naturalized in America, all the powers have thus far acted upon the same rules. It is agreed that a German who has once passed out of his connection with a German state, cannot become again a German citizen without some express choice of his own, and without the consent of the government.
- A.
- With regard to the reacquisition of citizenship the German states exercise only the same power which we exercise. We naturalize Germans after a short residence, if they serve in the Army or Navy, but that binds us only, and so it is with the German states.
- B.
- So long as Bavaria, Würtemberg, and the rest were independent powers, the residence of a naturalized American there had just the same effect as if he had resided in Belgium or Holland. Now that they form part of the German Empire, no case has come, or is likely to come up, that involves the question whether the union brings with it a change in this respect. In practice it would be as easy to pass, for example, from Baden to Switzerland, as from Baden to Würtemberg; and so of the other powers, if the evasion of the treaty which is suggested is desired. So this point will never be of practical importance. I cannot see how American interests are thereby exposed to injury; because America, like Germany, always retains the power for itself to decide what length of absence, if any, shall forfeit American citizenship.
4. On the consolidation of the extradition treaties I have already made a report to the Department in a separate dispatch.
5. I do not regard it as a misfortune that no treaty provision exists protecting the rights of inheritance of the emigrant, where the citizenship of the one country is lost and that of the other not yet acquired, because this is now exceedingly well regulated by the laws of Germany for Germans. This is proved in the very case of Klatt, where his inheritance was held safely for him by the Prussian functionaries, and when he could not be found, and so could not appoint an agent, an offer was made to pay the property over to an official of the United States. I have the approbation of the Department for giving the opinion that that offer was properly declined. There is still another objection to a treaty stipulation on this point: our laws know nothing of such a process as releasing a United States citizen at short warning from his United States citizenship.
My excuse for troubling the Department with so long a dispatch lies in my wish to induce the Department to think well of the existing treaties of naturalization, because, at any rate, it would not be good policy to attempt to alter or to consolidate them. Many causes conspire to make this moment the most inauspicious one for bringing before the German Parliament any document exempting men of German birth from obedience to military laws. The many myriads that fell in the late war have brought the question home to every house, to every cottage in Germany. The landholders think the covenanted exemption is an ever-active persuader to the best young men of the interior to emigrate; rumor exaggerates the number of those who cross the water for a time, in order to escape their duties to their country by gaining a foreign nationality. These and other causes, in my judgment, forbid the thought of attempting to change the present treaties; besides, of what use is it to unify the treaties which are interpreted and executed exactly alike?
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I remain, &c.,