pendent state to expel foreigners from its territory when such course is considered requisite upon grounds of the welfare of the state or of the public order.

"Nor do the treaties regulating nationality of the year 1868 conflict with the exercise of this right.

"Under Figure III., No. 1, of the final protocol of the BavarianAmerican treaty, which agrees in all essential points with the treaty between the North German Confederation and the United States, this is distinctly recognized, and thereby the North German-American treaty, concluded at an earlier date, has, in a certain manner, received an authentic interpretation. Germans naturalized in America, who have resided five years in the United States, are, it is true, in accordance therewith to be regarded as Americans, and are also to be treated as such in case of their return to Germany, in so far as they have not, in accordance with Article IV. of the treaties, renounced the naturalization acquired in the United States. They may, however, nevertheless, when the accompanying circumstances require, be expelled like any other foreigner. On principle this right will be considered [exercised] only when maturely considered grounds of the public welfare compel.

"The envoy may rest assured that the Royal Prussian government has been actuated solely by considerations of this character in the action it has taken with respect to the persons in question."

Count H. v. Bismarck, Imp. sec. for for. aff., to Mr. Pendleton, min. to
Germany, Jan. 6, 1886, For. Rel. 1886, 316.

"The doctrine now laid down by the foreign office seems to embody two propositions. The German Government appears to claim, first, that any American, whether he be native or naturalized, may be expelled from Germany whenever, in the opinion of the authorities, the welfare of the state demands it; and, second, that a good and sufficient ground for such expulsion is to be found in the purpose on the part of an emigrant to avoid military duty by emigration, the sufficient proof of which purpose for the German Government is the fact that the emigrant demanded an official permit to leave his native land. "I will now examine these two points in turn.

"The claim made by the German Government of a general right of expulsion raises the question of what rights of sojourn naturalized Americans have under the treaty of 1868. Article I. of that treaty reads as follows:

"Citizens of the North German Confederation, who have 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 appears to be the only sentence in the treaty relating to the status of naturalized American citizens pending the two-years' stay which is referred to in the fourth article of the treaty, and we must, therefore, turn to our treaty with Prussia of 1828, which is still operative, for a definition of the status and treatment of American citizens. Article I. of that treaty says:

"There shall be between the territories of the high contracting parties a reciprocal liberty of commerce and navigation.

"The inhabitants of their respective States shall mutually have liberty to enter the ports, places, and rivers of the territories of each party wherever foreign commerce is permitted. They shall be at liberty to sojourn and reside in all parts whatsoever of said territories in order to attend to their affairs; and they shall enjoy, to that effect, the same security and protection as natives of the country wherein they reside, on condition of their submitting to the laws and ordinances there prevailing.

"There would seem to be no question that under the concurrent effect of these two treaties, Americans, both native and naturalized, should have a free and equal right of peaceable sojourn in Germany if they submit to the laws.

"I notice the statement of Count Bismarck in his note to you of the 6th of last January, inclosed in your No. 154, of January 18, 1886, and in reply to your note to him of December 24, 1885, that the provisions of the treaty of 1828 do not conflict with the right of every independent state to expel foreigners from its territory when such course is considered requisite upon grounds of the welfare of the state, or of the public order, and that the treaties of 1868 regulating nationality do not conflict with this, and that returning emigrants, even when recognized as naturalized Americans, may, when the accompanying circumstances require, be expelled like any other foreigner, but that on principle this right will be invoked only when maturely considered grounds of the public welfare compel. This opinion, which would seem to put our relations with Germany as regards naturalized Americans on exactly the same footing as they were before the Bancroft treaty of 1868, and to open the door to the same endless and unsatisfactory discussions as then took place, does not, therefore, meet with the assent of this Government.

"The only question which it seems to this Government can be raised as to the right of Americans under our two treaties to remain. in Germany would be of how long a period of time is covered by that right in the case of naturalized Americans; and, to decide this, reference to the fourth clause of the treaty of 1868 is necessary.

66

Now, it would seem to be impossible to apply the prima facie test of an intent to renounce American citizenship as provided for in the last clause of that article, namely, a residence in Germany of over two years, if the returning emigrant is liable to be expelled, as is now proposed, before the expiration of the two years, and no right is reserved

in the treaty to the German Government to decide what period less than two years is sufficient, as Count Bismarck intimates, to attend to their affairs. This intent to renounce American nationality may, it is true, be expressed in some other way than a stay of over two years, and this not infrequently is the case, as is shown by dispatches from your legation reporting cases of deliberate and voluntary resumption of German allegiance on the part of naturalized Americans returning to their native land; but this Government contends that in the absence of any such voluntary and express manifestation of intent to renounce American citizenship, our citizens can, under the treaty of 1868, claim recognition of their status and all rights of sojourn pertaining thereto during the first two years following their arrival in Germany.

"That the intention of the German Government at the time of the signing of the treaty coincided with the views of this Government, as above expressed, appears clearly from the words of the decrees from the ministries of justice and the interior issued on the 6th of July, 1868, to all royal courts of appeal, supreme courts, state attorneysgeneral; to all the governments of the monarchy; to the chief president at Hanover, and to the presidency of police in Berlin, for their guidance and distribution. These provide—

"That the punishment incurred by punishable emigration is not to be brought into 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 to the first article of the said treaty. Also:

"In conformity to article 2 of this treaty, the punishable action committed by the unauthorized emigration of a citizen of the United States of America should not be made the ground of a penal prosecution upon the return of such person to his former country after absence of not less than five years, etc.

"The Royal Government is therefore instructed in such cases to abstain from recommending trial and punishment, and in general from every kind of prosecution whenever the person in question is able to produce proof that he has become a naturalized citizen of the United States of America in conformity with the first clause of Article I.

"Yet, notwithstanding these edicts, the proceedings and sentences against returning Americans appear to emanate from the local authorities in disregard of their instructions to report officially the remission by way of grace of the declared punishments and costs,' the possibility of condemnation and execution of the penalties not being apparently in any case contemplated by these decrees. These orders are entirely pertinent to the present discussion, although they may be admitted to have more especial reference to military fines for nonperformance of military duty, with a term of imprisonment in default of payment, the greater number of which are eventually repaid after the cases have been brought to the notice of the foreign H. Doc. 551-vol 3-25

office by your legation. Certainly peremptory expulsion at three weeks' notice may be fairly included under the termin general from every kind of prosecution, for expulsion is evidently a worse punishment than the ordinary fine, after the emigrant has incurred all the expense of a return to his native land, under the supposed protection of a treaty to remain there undisturbed for at least two years.

"This brings me to the second point made by the German Government for its refusal to rescind the orders of the local authorities, namely, that the application or request of these young men of sixteen years for permission to emigrate before attaining the age of military liability appears to justify the assumption that in seeking the discharge from Prussian allegiance, which the application apparently involved, they were actuated solely by the purpose of withdrawing themselves from the performance of the general military duty in Prussia.

"The minister of the interior on the 6th July, 1868, in his circular

says:

"In concluding the treaty of the 22d February of this year between the North German Confederation and the United States of America it was the prevailing intention that in conformity to art. 2 of this 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 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 declared, should not be consummated if the person has acquired in America the right to citizenship in conformity to Article I. of said treaty.

"The circular of the minister of justice is to the same effect, and in almost the same words. It seems to be a self-condemned proposition, whose refutation is contained in its statement that, if the punishment for unauthorized emigration was in every case to be remitted, authorized emigration was to be a punishable offense, and yet this is what the German Government asserts.

"Nor is it apparently quite logical to state (see Count Bismarck's note of December 21, 1885, transmitted in your No. 142) that the discharge from Prussian nationality could not lawfully be refused in time of peace to persons who have not yet reached the age of military liability (that is, the completion of the seventeenth year), and yet to say: The assumption seems therefore to be well founded that the persons in question (all under seventeen) sought discharge from their native allegiance, and emigrated to the United States only for the purpose of withdrawing themselves from all performance of military duty in Germany, and the same purpose must be assumed in the cases of H. P. Jessen, H. F. N. Rohlffs, and C. H. E. Rohlffs' (though these three were over seventeen years of age, and therefore might

have been refused permission), because these three persons emigrated to the United States after attaining the military age, without permission, and without having responded to the duty of presenting themselves for military service.'

"This Government has always in its consideration of these cases proceeded upon the supposition, which has thus far not been contradicted by the foreign office, that the military liability, the avoidance of which was culpable and punishable, did not begin until the age of military service, which is given in the German constitution as the completion of the twentieth year, and when a recruit is sworn into the service under the flag and assigned to a regiment. A disregard of this liability is understood to be desertion, and as such never defended by this Government.

"But whatever may be the age of military liability, the circular a of the minister of justice, issued in pursuance of the treaty, says, The punishment incurred by punishable emigration is not to be brought into execution on the return of an emigrant who has obtained naturalization in the other country, and this decision is given in execution of the treaty in which no distinction is made between those who emigrate before or after the age of military liability, excepting only those persons referred to in article 2, understood to be deserters.

"It seems unreasonable on the part of the German Government to grant a request to emigrate which carries with it necessarily a release from military duty whether the applicant asks for such release or not, and then years after this permission has been availed of to violate and invalidate its own permit, and impute motives to the emigrant which could have had no effect when applying for the permit, inasmuch as the authorities are obliged by law to grant it. But there surely ought to be a just and reasonable distinction drawn between the acts and intent of a mere lad of sixteen emigrating, and usually in obedience to his parents, and those of a young man of twenty who may have received his summons to appear, and hastens to escape from the country in order to evade its laws. Out of the thirteen persons expelled from Schleswig-Holstein since the 1st December, 1885, eleven were under eighteen years of age, and nine, who were under seventeen, had permits to emigrate.

"The complaint by the German authorities has appeared heretofore to be not so much of the fact of emigration, whether with or without permission, as of the return to Germany after naturalization and by acts and words inciting the embryo recruits in their native villages to discontent and emigration.

"But even as regards this species of offense, which is more legitimate in its basis than the one alleged in the Schleswig-Holstein cases,

a Printed Foreign Relations, 1868, Part II., p. 55.