Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873
[Untitled]
My Lord: I have the honor to transmit herewith the translation of a note, dated the 7th instant, from Baron Thile, inclosing a report which I was instructed by your lordship, in your dispatch of June 16, to furnish for the use of the naturalization commission on the disabilities to which aliens, residing in Prussia, are subjected by Prussian law.
A translation of this report, by Mr. Harris, Lord Brabazon, and Mr. O’Connor, is likewise inclosed.
I have, &c.,
The Lord Stanley, M. P.,
&c., &c., &c.
In compliance with the desire expressed in his excellency Lord A. Loftus’s note of Jnne 20, of this year, the undersigned has the honor to transmit herewith a summary of the principles applicable to foreigners as regards their legal status in the Prussian territory.
The undersigned avails himself, &c.
Summary of the principles applicable to aliens as regards their legal status in the Prussian territory.
According to the provisions of the general Prussian body of laws, the laws of this country are applicable to aliens living or carrying on business in Prussia in the same manner as to the Prussians themselves.
§§34 and 22 of the introduction to the general common law. Ministers and residents of foreign powers, as well as those employed in their service, are excepted, for whom are reserved the immunities which belong to them by international law, and by the existing conventions with different courts. (Page 36, as above cited.)
The provisions relative to the application of this principle in criminal or civil suits will be hereafter stated.
The exceptional position of the “personnel” of a legation has reference only to their exemption from the jurisdiction of the native penal and civil tribunals, and to the obligations which the laws of the country impose on aliens, not, however to the rights which aliens can generally acquire within this country. In this respect the “personnel” of the legation is in similar position to other aliens.
Aliens enjoy all the privileges of Prussian subjects in the carrying on of business duly authorized.
§ 41 of the introduction to the general body of law.
Whenever the respective foreign state has not, to the disadvantage of aliens generally, or to the subjects of this state in particular, imposed burdensome regulations. In this case retortion can occur, from which aliens cannot escape by the abandonment of their rights to natives.
§§ 43 and “of the introduction to the general body of law.
The right to’retortion becomes especially applicable whenever, in the bankruptcy in the state to which the foreigner creditor belongs, similar privileges to those enjoyed by its own subjects are not accorded to subjects of that state. (S. 3, statute respecting bankruptcy of May 8, 1855.)
A. Whenever aliens and natives have put an attachment on the estate of their debtors, and that attachment gives in the country of the aliens an advantage to the latter.
S. 87, Part I. Title 29 of the general statute respecting tribunals.
The right of retortion must not be put into operation by the courts of the first instance without the sanction of the legally-appointed authorities.
S. 44 of the introduction of the general body of law.
I. The entry of aliens into the Prussian dominions; their residence therein or their departure therefrom is not restricted by any burdensome formalities.
§ 2 B. of the law respecting passports for the North German Confederation. They are authorized to take up their abode without being naturalized; (§ 13 of the law respecting the acquisition and loss of the quality of a Prussian subject of the 31st of December, 1842, Law Collection of 1843, page 15;) but in this case they can be required to state the period during which they may continue in their previous relations as subjects.
§ 14. Above cited.
II. Aliens are limited in the exercise of political rights.
A. They cannot take part in the representation of the country.
§ 7 of the regulations for the formation of the 1st chamber (House of Lords) of the 12th of October, 1854, (Collection of Laws, 541,) and § 8 of the regulations respecting the selection of deputies of the 2d chamber (house of deputies) of the 30th May, 1849. (Collection of Laws, 205.)
B. With respect to the political municipal privileges, the principle prevails accord-ing to the municipal laws prevalent in different parts of the country, that—
a. In towns the acquisition of citizenship, i. e., the right of participation in municipal elections, as well as of the qualifications for undertaking unpaid posts in the municipal representation, is dependent upon the qualification as a Prussian; on the other hand, aliens can, on the same presumption as natives, i. e. by the acquisition, for instance, of a local domicile, become municipal members without the right of citizenship, [Page 1402] and thereupon take equal part in all the affairs and duties of the municipal members, with exception of the before-mentioned rights consequent on citizenship.
In the towns of the Duchy of Holstein (Holstein municipal regulations of the 11th of February, 1854) aliens, on the same condition as natives, (independence, respectability, and settlement in the town,) are capable of acquiring the right of citizenship, provided the permission of their residence is not forbidden for police reasons, and that they have complied with the special existing regulations respecting the establishment of aliens. These regulations tend to the effect that aliens arriving in the country should not merely apparently and temporarily, but really settle down in the place. He (the alien) must not retain his own residence in another place, and must, when married, establish his household in the place, together with his wife and children, so that he (as the royal statute of the 23d September, 1796, says) can “be looked upon as our own subject.”
Aliens who are unmarried and without a household establishment must, as a security that they intend to remain in the place, and before receiving the right of citizenship, deposit 200 thalers as bail, which will be returned to them only after a lapse of five years, provided they have during the interim resided in the place and followed a civil calling; otherwise it goes to the municipal fund.
Besides this, the special regulations specified by the charter of the 5th of November, 1841, (Chronological Collection of the Schleswig-Holstein Ordinances of 1841, page 243,) with respect to the settlement of aliens, must be complied with.
The right of citizenship qualifies forthwith for every kind of civil employment in the place, also for the municipal elections, the municipal offices and duties (mandate,) and compels the acceptance of the latter.
Residents in a municipality, but without the right of citizenship, are (schutznerwanth) under the especial protection of the government.
These enjoy such municipal privileges as are not exclusively attached to the right of citizenship, and are obliged to pay the municipal taxes, (and, by statute, not at a less rate.) Aliens can only become (schutznerwanth) under the especial protection of the government when they have complied with the above-mentioned special regulations respecting domicile in a place. In the Holstein country towns the same principles essentially prevail as in the towns and country towns of Schleswig.
b. Also in the country municipalities (landgemeinde) the general principle prevails, according to the municipal regulations existing in the different parts of the country, that aliens can only obtain complete municipal rights after they have first obtained the right of citizenship. In the municipality of Hanover, however, owners of property, farms, and dwelling-houses in general, can exercise the right of municipal electors, and so, also, if they are aliens, without being settled there when they have acquired the right to reside in the respective municipality, which again presupposes the acquisition of the rights of a subject.
In the municipalities of the Schleswig-Holstein Duchies, by the decree of the 22d of September of last year, (Law Collection, page 1603,) relative to the right of election, the local regulations existing in each municipality are in the bulk maintained. These local regulations rest mostly on custom.
C. Relative to participation in the provincial and district representation, the qualification of being a Prussian on the part of an owner of landed property is not required.
The royal order in council of the 28th of May, 1809, which is in force in the eight older provinces, with the exception of the Rhine Province, makes the acquisition of nolle property and manor-houses by aliens subject to a special concession from the minister of the interior, which is dependent upon taking an oath of allegiance. By royal order in council, also, of February 15, 1858, it is ordered, in accordance with the decree of March 28, 1809, that the acquisition of a Rittergut by an alien must, before a special permission can be accorded, be subject to this condition—that the owner of the property must only exercise the: rights appertaining to the same, especially that of attendance at quarter session, by means of a delegate, who is to be chosen from these privileged owners of property (rittergustbesitzer) accustomed to the personal exercise of these rights. In the Rhine Provinces the royal order in council of May 31, 1847, only states that aliens who possess land in the Rhine Provinces are not permitted to exercise the rights of privilege attached to the property until they have taken the oath of allegiance. With regard to capability of election, actively and passively, to the circuit, communal, and provincial sessions in towns and parishes, the condition of being a Prussian subject is in general attached, in accordance with II B, of the above-cited regulations, as such capability is made subject to the possession of right of citizenship or membership of the parish.
In the regulations issued in the year 1867 for the newly acquired provinces respecting the circuit and provincial constitutions, there exist no express provisions touching the necessity of being a Prussian subject in order to exercise the rights of landowner-ship in regard to electing and being elected.
As far as our laws are silent upon this subject, aliens may be looked upon as authorized to exercise these rights. Without doubt those who are in a similar position to [Page 1403] natives, in respect to being large landed proprietors, are not compelled to obtain a special concession or to take the oatb of allegiance.
D. Aliens, having powers of policial supervision, are not permitted to exercise their authority in person, but must appoint a native delegate to superintend the police of the place—(§ 7 of the law respecting the rural local magistracy in the six old East Provinces, of April 14, 1856; Collection of Laws, 354.) The appointment to situations under the state and also to the post of consul.
§ 6. Statute of December 31, 1842. Legal Code for 1843, p. 15. Royal order of Oct. 17, 1847, p. 375. Royal order of Jan. 27, 1862, p. 95.
§ 7 of the law on the organization of the consulates of the Confederation of November 8, 1867.
Federal laws, page 1418.
The right to act as jurymen in criminal suits.
§ 62, decree of January 3, 1849, Legal Code, 14.
Art. 56, law of December 3, 1852, p. 209.
The right to act as arbitrators in civil suits is not attached to domicile, (indigenat,) but is nevertheless not allowed to persons living abroad.
§ 41. Introduction to general statutes respecting tribunal.
III. Aliens, with the exception of the corps diplomatique, are subject in like manner as natives to the indirect taxes, as also to the land tax payable on land and houses appertaining to them in this country.
They are liable to the class and income taxes, subject to the modifications mentioned above in § 6 and 18 of the law of May 1, 1851. Legal Code, 193.
In regard to their legal rights in private affairs, aliens are permitted in Prussia to acquire both personal and real property, as also to carry on business of all kinds. As participators in an inheritance within this country they possess equal rights with natives. No deduction shall be made from inheritances falling to aliens, unless the government of the alien raises a like tax on inheritances accruing to aliens.
Royal order of April 11, 1822. Legal Code, page 181.
With reference to the acquisition of property by aliens, the three following limitations are in force:
I. Donations, inheritances, and legacies cannot be left to foreign corporations and public institutions without royal permission.
5. 11. Law relating to donations and bequests to institutions and companies, of May 13. Collection of Laws, page 49.
2. Foreign corporations and other authorized persons, especially joint-stock companies, are not permitted to acquire real property within the Prussian state without royal permission.
Law of May 4, 1846. Collection of Laws, page 235.
3. Estates and manor-houses belonging to the nobility cannot be acquired by foreigners without the permission of the minister of the interior. Royal decree of March 28, 1809, page 7.
Witb regard to real property situated in Prussia, it is subject to the laws of the jurisdiction in which it may be placed, without regard to the person of the proprietor.
§ 32. Introduction to general body of law.
Every negotiation thereon must consequently be carried out in the form required by the laws of this country.
§ 115, I 5. Body of law.
The personal qualifications and rights of foreigners (jura status) are generally judged in accordance with the laws of their country.
§ 23. Introduction to body of law.
If, however, that law should, as regards competency to enter into relations under the cognizance of the law, differ from the Prussian law, then the competency of the contracting parties with respect to such relations entered into in these countries, and with respect to the concluding of contracts, shall be determined by the law with which the subject shall the best comport.
§ 26, 35. Introduction to body of law.
Especial regulations apply to the following cases:
1. Foreigners who are desirous of contracting a marriage in Prussia, either with a native or a foreigner, must, in addition to fulfilling the other legal requirements, prove by a certificate, properly attested by the local authorities of their home, that they are permitted by the laws of their country, without hindrance to their state allegiance, to contract a marriage abroad, or that they have received, in accordance with these laws, the necessary permission for the contracting of the proposed marriage.
The ministers of justice, religion, and the interior are, neverthless, empowered, as well in particular instances as with regard to the legislation of particular states, to permit to their subjects generally the production of such a certificate,
§ 1 and 2. Law of March 13, 1854.
[Page 1404]Collection of Laws, p. 123.
2. The carrying on of business is usually permitted to aliens as well as to natives, but—
a. The right of owners of mercantile ships to hoist the flag of the North German Confederation is confined to those foreigners who are naturalized.
§ 1. Law of October 28, 1867.
Confederation Laws, p. 35.
General order of March 25, 1868, relative to keeping the ship’s log. Judicial Ministerial Paper, p. 95.
b. Aliens must obtain permission of the minister in order to carry on through agents in Prussia insurances and emigration undertakings.
§ 2. Law of May 14, 1853.
Collection of Laws, p. 293.
§ 7. Law of May 7, 1853.
Collection of Laws, p. 430.
C. Foreign agents, in default of an international treaty, can only carry on a permanent trade with the permission of the minister of commerce; likewise—
D. In accordance with § 12 of the law of hawking, of April 28, 1824, the alien is in general only allowed to carry on the trade of the peddler under greater restrictions than the native.
3. Foreigners can only be appointed guardians to native wards with the consent of the minister of justice, when in all matters relating to the trusteeship, with the permission of their own foreign law, they have submitted to the authority of the courts exercising jurisdiction over guardians and wards.
§ 156, 157. Part II. 18 Common Law.
V. With reference to the administration of the civil and criminal code, the jurisdictional stipulations concluded with separate states come next into operation.
Apart from such stipulations the following principles are in force:
A. In criminal cases.
a. Foreigners are subject to the Prussian criminal code, if they commit in Prussia a crime, misdemeanor, or excess; or abroad, an action which in the Prussian code would come under the heads of high treason or false coinage.
§ 3 and 4. Criminal Code of April 14, 1851.
b. There is this particular difference between the punishment of a native and a foreigner, that in those cases in which a native would be sentenced to police supervision, a foreigner would be banshed from the country, (§ 29 in book above cited,) and the return of an alien thus banished is punishable with three months to two years’ imprisonment.
§ 115, as above cited.
c. Aliens who fail to pay the fine affixed to smuggling are at once arrested, if they are found in the country, and the punishment of imprisonment fixed by law is carried into effect if they do not once pay or find security, whilst the alternative punishment of imprisonment is only enforced against a native when the amount of the fine has not been procured by means of an execution on the property of the defrauder.
§ 54, 55. Law of January 23, 1838.
Collection of Laws, p. 89.
§ 24, 25. Law of July 29, 1867.
Collection of Laws, p. 1275.
d. With regard to procedure, the same regulations apply to aliens and natives; but in cases in which a private suit is instituted for examination and punishment, alien private suiters must pay higher fees than natives, if in their native state foreigners and natives are not placed on the same footing.
§ 492 of the law of June 25, 1867, touching the laws relating to penal punishment and procedure in those portions of the country annexed in the year 1866.
In time of war aliens are subject to the jurisdiction of courts-martial in two cases: aa. Foreign officers attached in time of war to the Prussian army, and their suite; and—
bb. All aliens who, by traitorous conduct at the seat of war, bring danger or hurt to the Prussian troops; but in this latter case this extraordinary tribunal only comes into operation when the King, or the general in his name, gives the order for the assembly, and makes it publicly known.
§ 18. Nos. 2 and 4 of the martial law of April 3, 1845. Collection of Laws, 333.
E. In accordance with the principles of extra territoriality, the ambassadors accredited to this court, the charge d’affaires, their wives, and persons belonging to the missions accredited to this court, and their servants, are free from all examination and arrest, except sentence is passed on them by the highest state authority. Courts of justice and police authorities are bound to take every precautionary measure to hinder the accomplishment by any of these persons of a meditated crime.
§ 251, 253, 258. Criminal Code of December 4, 1805.
B. In civil suits.
[Page 1405]1. Aliens have the same powers as natives asserting their private claims as plaintiffs before the courts of justice.
There are two exceptions to this principle within the jurisdictional limits of the general statute respecting tribunals.
a. According to the regulations of the general statute respecting tribunals, natives as well as aliens are bound to give security to the defendants in cases where the matter cannot be at once settled. But the defendant can only refuse in a suit with a foreigner to go into court, or to allow the suit to continue, if the plaintiff cannot find security.
§ 13, I 21.
b. Aliens can only obtain the arrest of another alien.
aa. When the summons has reference to a contract concluded or to be carried out in this country.
bb. When the debtor in the deed by virtue of which the arrest is sought has made himself liable either to payment or arrest in any place.
cc. When the summons originates in a bill of exchange which has fallen due, and the drawer is a merchant who visits the fairs and markets of this country.
§ 88. I 29. General statute respecting tribunals.
1. According to the regulations of the Hanoverian law in force in the province of Hanover, only aliens are bound as plaintiffs to provide security for the payment of legal costs, in accordance with § 54, 55 of the Hanoverian statute of November 8, 1850. (Hanoverian Code of Laws, page 341.)
2. With reference to the obligations of aliens to appear as defendants before the courts of this country, a difference of procedure prevails in the provinces where the civil code or general statute respecting tribunals or where the common law is in force.
a. Within the judicial limits of the civil code, according to art. 14, every alien, even if he does not live in the country, can be cited before the courts of the country on account of obligations entered into with a native either in this country or abroad.
b. There is, however, a difference in the working of the general statute respecting tribunals which depends upon this, whether personal or real law be put in force against the alien.
1. A personal forum (the forum domicilii) belongs to foreigners in Prussia whenever they have settled there, or are staying in Prussia with that intention. After the cessation of (eximirten) legal status they can be cited on personal matters before the tribunals of the districts in which they have settled, or have declared their intention of settling.
Section 26, 27. I 2. General statute resiiecting tribunals. Section 1 and 23, decree of January 2, 1849.
2. Foreigners traveling through Prussia have here generally no personal forum; accordingly they can only be cited before the tribunals of this country in those cases in which a native could be cited before another tribunal as constituting his personal forum.
This is the case:
a. Whenever plaint is made respecting the completion or cessation of a contract which was concluded in this country, or should be here carried out, the plaint can be instituted just as well before the tribunals of the country of the concluded contract as of the place for its carrying out; but that forum is only established whenever the defendant allows himself to be met with there, i. e., whenever the plaint can be served upon him within the jurisdiction of any such tribunals.
Sec. 14851. I 2. General statute respecting tribunals.
The last restriction does not apply in plaints respecting bills of exchange. These can be instituted at the place of maturity against any persons responsible for bills.
Sec. 6. Law of February 15, 1850.
Collection of laws, page 53.
b. Claims arising out of an administration can be presented before the tribunal at which any one shall have administered a foreign real or personal estate, until the administrator has wound up the administration.
Sec. 154, 155. I 2. General statute respecting tribunals.
c. If any one has had an attachment served for damages, he must free himself before the judge of the place where the attachment arises, and, if he be a foreigner, must on that account give security.
§ 120. I 2. General statute tribunals.
§ 546. 114. General body of laws.
This regulation has been recently extended to the case of foreigners injuring natives in this country.
§ 8. Supplement to general statute tribunals.
d. In the case of attachment.
The order of attachment rendered necessary as security of the plaintiff’s claim is admissible before every tribunal within whose jurisdiction the defendant lives or where goods of his are to be found. The hearing of the chief claim belongs to the judge of the personal forum of the defendant whenever he has a personal forum in his native [Page 1406] country. With respect to foreigners, the forum determines the attachment as well as the hearing of the chief claim.
§ 79, I 2, § 76, 88–90, I 29. General statute tribunals.
§ 201, 212. Supplement to general statute tribunals.
E. In the case of voluntary (declared or tacit) prolongation.
§ 160–165, I 2.
In the case of obligatory prolongation this takes place—
aa. When aliens cite a native within his jurisdiction in this country, then they can be sued in the same forum (forum reconventionis) by the accused on account of all counter-claims, and also when it arises from a claim in a real action relative to a movable or immovable property, whereas natives can in this case be sued only in the real forum.
§ 16, 17, and following, I 19.
bb. In the case of actions for defamation.
When aliens pretend to a claim against a native, they can be accused by the latter upon the hearing of their pretended right, which subjects him to the prejudice of a judgment against the pretension before the court to which the hearing of the case would belong.
§ 4, I 32. General statute tribunals.
G. A divorce suit against an alien can in this country only be instituted when an alien who has no house elsewhere, or who conceals such house, has during his residence in this country married a native woman without acquainting her that he did not intend to remain in this country.
§ 129, I 2. General statute respecting tribunals.
§ 38. Supplement to general statute respecting tribunals.
B. The real forum is open against natives or aliens possessing movable or immovable property for all causes of action having a real right for their basis.
§ 107, 116, I 2. General statute tribunals.
a. In the provinces where the (Landfassinit?)is in force, the bringing forward of personal plaints in foro rei sitœ against an alien proprietor is permissible. Apart from this, even personal claims which arise out of the possession of landed property, or out of transactions which in his quality as landed proprietor he had undertaken, can be instituted against the possessors of immovable property in foro rei sitœ.
§ 112, I 2. General statute respecting tribunals.
Under that head the following cases “are included: when a landed proprietor refuses—
- a.
- To fulfill his obligations contracted with his farmer or agent, or
- b.
- To allow compensation for loans and materials employed for the improvement of the estate; or when a proprietor
- c.
- Disturbs his neighbor in possession.
- d.
- Or sets up a false claim to the actual rights of the adjoining property, or when he in part or wholly alienates landed property, and does not fulfill his contract, or does not give the due quiet possession.
§ 131, as above cited.
B. These legal regulations are extended in favor of Prussian subjects, so that they can raise clainis against any alien living in the country and possessing movable or immovable property, before the tribunal under whose jurisdiction the property is situated, on account of personal claims, with the object of obtaining payment out of the property he owns in the country.
§ 34. Supplement to general statute respecting tribunals.
4. In the courts having cognizance of inheritance there can be instituted against foreign co-heirs—
a. Claims of legatees and of creditors of the testator’s estate.
§ 121–4, I 2.
b. Claims on account of inheritance so long as there remains a portion of the inheritance.
§ 125, as above cited.
5. On requisition of the Prussian courts, execution decreed by foreign courts of law will be carried into effect when there is no doubt as to their competence, or as to the affair in question.
§ 30, I.2.
Such doubts especially occur whenever the period shall have expired within which, according to the laws of this country, execution by decree can be sought.
§§2, 3, I 24.
Or whenever a kind of execution inadmissible by the laws of the land is sought.
6. The §§ 292–6 of the bankruptcy decree of May 8, 1865, contain special regulations for the procedure with respect to native property of a foreign insolvent debtor.
Thus merchants who have a commercial establishment in this country can obtain an insolvency (particular concurs) in respect of property here; and any other insolvent co-debtor is subject, upon petition of the creditors, to the bankruptcy procedure, which allows the appearance of foreign creditors. The balance remaining after the conclusion of the insolvency or the bankruptcy, as the case may be, is delivered to the foreign [Page 1407] bankruptcy judge after the consent of the minister for foreign affairs and the minister of justice shall have been obtained.
7. Envoys, chargé d’affaires, and residents of foreign powers accredited to this court, and the persons in their service, are exempted from the jurisdiction of the tribunals of this country.
§§ 62, 63, 64, I 2.
If, however, such persons possess real property in this country, they are subject to the regulations under Z. A. But inquiries must be made at the ministry for foreign affairs before the summons is issued, whenever it is not a question of an essentially real action, and whenever the envoy, chargé d’affaires, or his wife, even, is the possessor.
This exemption applies to Prussian subjects who enter the service of the envoy during the period of his service; also to Prussian female subjects who shall marry, after compliance with the requisite conditions, with the foreign envoys, or with persons of the higher rank in their suite. The exemption applies to the wives of servants of an envoy only whenever such persons are also in the service of the envoy, or reside with their husbands together in the envoy’s house.
§§ 67, 68, I 2.
C. The above-mentioned regulations, which are in force within the jurisdiction of the “general decree for the administration of justice,” come into operation also in those territories in which the Hanoverian “decree respecting actions at law,” of November 8, 1850, and the common law obtain. The Hanoverian “decree respecting actions at law,” however, recognizes, in accordance with the common law, the forum contractus, even when the defendant is, at the time of drawing up of the suit, not within the district of the tribunals.
§ 10, as above cited.
The civil suit respecting forbidden acts belongs unconditionally to that tribunal in the district of which the act occurred.
§ 12, as above cited.
Lastly, the forum reale is recognized only on behalf of such real actions respecting possession, boundaries, and partition, as have for their subject immovable property; and, further, on behalf of all actions against the possessors of immovable property considered as such.
Executions arising from judgments passed abroad, and from decisions in arbitration, take place according to the Hanoverian “statute respecting actions at law,” (page 533,) with the same exceptions which are valid in the case of native subjects; and, further, that statute lays down in a similar manner to the Prussian statute respecting “bankruptcy,” at page 605, that a special bankruptcy can be obtained, and the balance of the estate paid over to the foreign tribunal, in respect of native property of the foreign bankrupt, upon petition of the interested creditors,