Ambassador Tower to
the Secretary of State.
American Embassy,
Berlin, May 30,
1906.
No. 972.]
Sir: I have the honor to report to you the
decision of the Imperial German Government in regard to the military
case of Maurice Kahn, a naturalized American citizen, born in Alsace,
who was fined for nonperformance of military duty and to whom permission
to visit his former home was refused by the German authorities, on the
ground that, as he is a native of Alsace-Lorraine, he is held to be
still a German subject, nothwithstanding his naturalization in the
United States.
This case was reported upon to you by me in my dispatch No. 876 of the
18th of January, 1906, at which date I fulfilled the instructions
contained in your dispatch to me No. 438, of the 13th of December, 1905,
and addressed a note, dated January 16, 1906, to the imperial German
minister for foreign affairs, in which I recalled his attention to the
case of Mr. Kahn and informed the minister that by your direction I was
to continue my effort in behalf of the said Kahn, “making it clear that
the United States Government does not acquiesce in the contention of the
German Government as to the nonapplicability of the Bancroft
naturalization treaties to Alsace-Lorraine.”
I have now received from Herr von Tschirschky und Bogendorff, imperial
secretary of state for foreign affairs, in reply to my note to
[Page 651]
him of the 16th of January, a
note dated 22d of May, 1906, a copy and a translation into English of
which are herewith respectfully inclosed, in which the German Government
not only replies to my declaration that the United States Government
does not acquiesce in its contention as to the nonapplicability of the
Bancroft naturalization treaties to Alsace-Lorraine, but makes a
specific statement as to its view of this question and as to the
attitude in regard to it which the Imperial Government intends to assume
from this time forth; that is to say:
Since the years 1880 and 1881, in which the Government of the
United States of America was informed as to the understanding of
the Imperial Government of the nonapplicability of the so-called
“Bancroft treaties” to Alsace-Lorraine, no change of this point
of view has taken place either in fact or in law. It was pointed
out at that time, and accepted without dispute by the Government
of the United States, that the provisions of these treaties can
be extended to Alsace-Lorraine only by means of a treaty to be
hereafter entered into by the United States of America and the
German Empire. See the note dated the 28th December, 1881, of
Mr. Sidney Everett, then chargé d’affaires of the United
States.
The Imperial Government has now clearly announced, therefore, that it
does not consider that the Bancroft naturalization treaties are
applicable to Alsace-Lorraine, and it meets squarely the contention of
the United States that they are so applicable.
Referring to the establishment by the two governments of a convention
which shall decide this question by the consent of both of the high
contracting powers, as he suggests, the imperial secretary of state for
foreign affairs sums up in his note the relations of a native of
Alsace-Lorraine naturalized in the United States, as follows:
So long as this has not taken place, a penalty for nonperformance
of military service which has been duly imposed upon subjects of
Alsace-Lorraine who have evaded the fulfillment of their
military duty in Germany, can not be allowed to remain in
abeyance in case of their return to Germany, even if they have
become citizens of the United States of America.
The note of Mr. Sidney Everett, to which reference is made herein, was
addressed by him as chargé d’affaires ad interim of the legation of the
United States of America in Berlin to Count Hatzfeld, provisional
secretary of state for foreign affairs, in the course of a discussion
which was taking place at that time very much in the same manner as that
of to-day, in regard to the naturalization in America of German subjects
born in Alsace-Lorraine.
I have the honor to inclose to you herewith, for your information, a copy
of Mr. Everett’s note.
I have, etc.,
[Inclosure
1.—Translation.]
The Minister for Foreign
Affairs to Ambassador Tower.
The undersigned has the honor to inform his excellency Mr.
Charlemagne Tower, ambassador extraordinary and minister
plenipotentiary of the United States of America, in reply to his
note of the 16th of January, 1906, F. O. No. 728, that the case of
Kahn has been subjected to a reinvestigation; but that, to its
regret, the Imperial Government can not make any change in the
decision which it communicated to the embassy on the 28th of
October, 1905, namely,
[Page 652]
that if Kahn returns to Alsace-Lorraine, he will have to undergo the
sentence passed upon him for the evasion of his military duties, and
will also have to fulfill his military service.
Since the years 1880 and 1881, in which the Government of the United
States of America was informed as to the understanding of the
Imperial Government of the nonapplicability of the so-called
“Bancroft treaties” to Alsace-Lorraine, no change of this point of
view has taken place either in fact or in law. It was pointed out at
that time, and accepted without dispute by the Government of the
United States, that the provisions of these treaties can be extended
to Alsace-Lorraine only by means of a treaty to be hereafter entered
into by the United States of America and the German Empire. See the
note dated the 28th of December, 1881, of Mr. Sidney Everett, then
chargé d’affaires of the United States.
So long as this has not taken place, a penalty for nonperformance of
military service which has been duly imposed upon subjects of
Alsace-Lorraine who have evaded the fulfillment of their military
duty in Germany, can not be allowed to remain in abeyance in case of
their return to Germany, even if they have become citizens of the
United States of America.
The undersigned avails himself of this opportunity, etc.,
[Inclosure 2.]
[Mr. Everett’s note above referred
to.]
Legation of the United States,
Berlin, 29th December, 1881.
The undersigned, chargé d’affaires ad interim of the United States of
America, referring to his interviews of the 24th and 27th instant at
the foreign office, has the honor now to inclose to his excellency
Count Hatzfeldt, provisional secretary of state for foreign affairs,
copies of the protocol signed by his excellency Mr. von Schlozer and
the Hon. James G. Blaine at Washington on the 3d instant, as well as
the letter of the latter to Mr. von Schlozer of the 29th ultimo,
which led to the signing of the protocol.
The undersigned would state that in his interview with Count
Limburg-Stirum on the 8th of December, 1880, alluded to in the
Secretary’s note, his excellency himself suggested that it was
desirable if possible to avoid making a new treaty, or changing the
present one, and it was with the intention of meeting these views of
the German Government that the inclosed short and simple form was
adopted. As regards Article I, to the form of which the undersigned
understands there is some objection on the part of the foreign
office, which states that “the provisions of the convention of 1868
with the North German Confederation were applicable to all the
territories of the German Empire which have been acquired since the
exchange of ratifications or which may hereafter be acquired,” it
was not forgotten probably either by his excellency Mr. von Schlozer
or Mr. Secretary Blaine that Alsace-Loraine had never formed part of
the North German Confederation, and that, consequently, the treaties
of 1868 did not include that province, as was fully explained in the
honored note of his highness Prince Hohenlohe to this legation on
the 5th of August, 1880, and which was transmitted to Washington at
this time. The undersigned presumes, however, that in this article
it was intended merely to express in that way that what is now a
treaty with the North German Confederation becomes on the signing of
the protocol a treaty with the Empire, and extended to all its
provinces.
Previous to the above-mentioned note of Prince Hohenlohe and the
subsequent interviews with Count Limburg-Stirum, the American
Government had, indeed, imagined that as the North German
Confederation has ceased to exist its treaties affecting military
services were transferred to the German Empire as well as its
military system of legislation, instructions, regulations and
ordinances, as stated in No. 61 of the imperial constitution, and
that they were consequently extended to Alsace-Lorraine when that
province became a part of Germany as provided for by the imperial
decree of 9th June, 1871, No. 2, and this misapprehension of the
American Government was still further encouraged by the fact that
the predecessors of Prince Hohenlohe in the foreign office had
invariably decided all military cases of naturalized Americans in
Alsace-Lorraine
[Page 653]
according
to the treaty of 1868. Otherwise it would seem to follow that
naturalized Americans from any of the North German States would be
liable to be seized as deserters if they were found in
Alsace-Lorraine, because their treaty rights did not extend to that
province.
It was to avoid all such misunderstandings that the Secretary of
State, waiving all discussions of these questions of the application
of the treaty, made the first overtures to the German minister for
an amicable settlement of the difficulty, and the undersigned begs
to call the attention of His Excellency Count Hatzfeldt to the
sentence in the note of the Secretary of State which states that
“the Government is not tenacious of the manner of settlement
proposed, but will, if insisted upon by the Imperial Government,
conclude a supplemental convention covering substantially the ground
of the draft-declaration now submitted.”
The undersigned, trusting that His Excellency Count Hatzfeldt will
meet the inclosed proposals with the same friendly spirit in which
they are offered, and facilitate an early settlement of this
important matter, and also requesting that the legation may receive
a copy of any proposed alteration in the protocol from the imperial
foreign office, avails himself, etc.,
