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not be made to perform military service in Germany, but international principles, said Dr. Busch, permitted the refusal to them of a right to sojourn in Germany. The position of the German Governinent was combated by Mr. Frelinghuysen in an instruction to Mr. Kasson of February 7, 1885, the substance of which was communicated by Mr. Kasson to the German foreign office on February 25. An extended answer was made by Count Hatzfeldt on May 16, 1885, reaffirming the views expressed by Dr. Busch.
See Mr. Kasson, min. to Germany, to Mr. Frelinghuysen, Sec. of State,
Jan. 6, 1885, For. Rel. 1885, 392; Mr. Frelinghuysen to Mr. Kasson,
id. 417; Mr. Kasson to Mr. Bayard, May 19, 1885, id. 416–418.
With reference to the case of a native of Würtemberg who, after being naturalized in the United States, returned to his native country, apparently with no intention permanently to remain there, Mr. Frelinghuysen observed that the treaties, in providing that an intent not to go back to the country of adoption might be held to exist after a two years' residence in the country of origin, did not of themselves “ work forfeiture of citizenship,” but that in such a case affirmative governmental act was necessary to show” that the person “ had, through residence in Germany, without intent to return here, forfeited his naturalization.” With reference to this statement, Mr. Kasson, to whom it was addressed, observed: “If the apparent fact of a residence resumed in his native country without intention to return to the United States was true, the period of two years was quite eliminated from consideration. For the renunciation in question was cffected at the time, however early, when he renewed his residence in Germany without that intent to return to the United States. the two-years clause reads ó may be held;' this paragraph [Art. IV. of the treaty of 1868 with the North German Union, which provides that, if the naturalized citizen renews his residence in North Germany, without the intent to return to America, he shall be held to have renounced his naturalization in the United States '] reads shall be held;' the one grants an option, the other imposes an obligation. A similar distinction exists in the German text of the treaty. As the facts not denied showed a renewed German residence without any intent to return to the United States by the father, before the birth of the son, it seemed obligatory to conclude that American citizenship ceased, whether or not German citizenship was regained.”
Mr. Frelinghuysen, Sec. of State, to Mr. Kasson, min.·to Germany, Jan.
15, 1885, For. Rel. 1885, 396; Mr. Kasson to Mr. Frelinghuysen, Feb. 14, 1885, id. 401.
In a report of March 20, 1885, Dr. Francis Wharton, law officer of the Department of State, maintained that, under Article IV. of the naturalization treaty of 1868 with the North German Union, a residence of more than two years of a naturalized person in the country of his origin creates only a rebuttable presumption of an intention to abandon or renounce the acquired citizenship. This report was inclosed by Mr. Bayard, Secretary of State, to Mr. Pendleton, minister to Germany, December 18, 1885, For. Rel. 1885, 438.
“ In this case, as in Wedemeyer's and several others of recent occurrence, the Department is indisposed to intervene. Generally speaking, when a German, naturalized in the United States and returning to Germany, voluntarily applies to be reinstated in his German subjection, and only appeals to the legation for protection as an American citizen when the native authorities decline to readmit him as a German, the evidence of his devotion to the United States is not strong. It would in such cases be as reasonable for us to intervene to demand that Germany take back the applicant as to demand that he may indefinitely reside in Germany under the thin guise of a citizenship he sets no store by and has attempted to renounce."
Mr. Porter, Acting Sec. of State, to Mr. Pendleton, Feb. 2, 1896, MS. Inst.
Germany, XVII. 594.
W., who was born in Prussia, claimed citizenship of the United States through the American citizenship of his father. It appeared that W's father was naturalized in New York in 1885, but that in 1856 he returned to Germany, his native land, where W. was born in 1862. W's father died in Germany in 1883. In 1880 W., being 13 years of age and subject to military duty, came to the United States, whereupon he was proclaimed a deserter. April 30, 1895, the ambassador of the United States was instructed to seek permission for W. to visit Germany. The German Government refused on the ground that W. was a Prussian subject, maintaining that his father had prior to his birth, by his return to and continued residence in Germany, lost his American nationality. The Department of State held that this contention was warranted, saying: “ The Department has done all that it properly could in your behalf. In reply to your inquiry as to what you shall do to establish your American citizenship on a firm basis, the Department is of opinion that your best course would be to apply to a competent court for naturalization in due form."
Mr. Olney, Sec. of State, to Mr. Wilzing, September 28, 1895, 205 MS.
Dom. Let. 119.
Where it was suggested that a person who intended to return to Prussia, with his family, “ to stay for several years and perhaps permanently," might conserve the American citizenship of himself and his minor sons, in spite of Art. IV. of the treaty of 1868, “ by returning to the United States every two years to get a new passport and to go back to Germany,” the Department of State declared that the plan was “impracticable, for the reason that this Department would not issue to you a passport under such circumstances;” that such a course, if successfully accomplished, would enable a person to evade the duties and obligations of citizenship in both countries; and that the state was “entitled to expect and demand something in exchange for its protection."
Mr. Olney, Sec. of State, to Mr. Materne, May 29, 1896, 210 MS. Dom. Let.
“ Under the statute to confer American citizenship upon the [foreign-born] child the father must be a citizen of the United States at the time of the birth of the child. If the father has become a citizen of a foreign power or if he has abandoned his citizenship in the United States before the birth of the child, the latter can make no claim to citizenship. “If born after the father has in any way expatriated himself the children born abroad are to all intents and purposes aliens, and not entitled to protection from the United States.' (Mr. Fish to the President, August 25, 1873; Foreign Relations, 1873, Part II., p. 1191.)
“ Without regard to the treaty, it is the duty of this Government to decide whether young Rosenheim is entitled to a passport. In doing this, it must necessarily pass upon the citizenship of the father, as the son can claim citizenship only through the father.
" You do not claim that Rosenheim, the father, had reacquired Bavarian citizenship, but that he had, by his acts, renounced his naturalization in the United States, and that all rights and privileges acquired thereunder were surrendered. It seems to me, in view of the father's departure from the United States a few months after his naturalization, his return to Bavaria and his establishment of a permanent domicil there as a retired gentleman (it has now been nearly thirty years since his return) that the conclusion is irresistible that he had abandoned his citizenship in the United States at the time of the birth of the son. This being so, then the son has no claim to American citizenship and is not entitled to a passport."
Mr. Olney, Sec. of State, to Mr. Uhl, ambassador to Germany, Oct. 10,
1896, For. Rel. 1896, 220. It appeared that Rosenheim, the elder, a native of Bavaria, emigrated to
the United States about 1819 and resided there till 1867, when, within
six months after his naturalization, he returned to Bavaria, where H. Doc. 551-vol 3- 18
he had ever since resided. The son was born in Bavaria, June 7, 1878, and had never been in the United States. He desired a passport to visit Holland.
“ I have to inform you that your dispatch No. 196, of the 1st instant, stating that Mr. Ernst Friedrich Blumenthal, who became naturalized as an American citizen in the United States court for the western district of Pennsylvania on the 5th of January, 1893, recently called on Mr. Johnson, the United States consul at Stuttgart, exhibited his naturalization certificate and surrendered his passports, and then told the consul that he intended remaining permanently in Germany and renouncing his American citizenship, has been received.
" In view of the statement made by Mr. Blumenthal, and of the fact that he voluntarily gave up his passports, the Department approves of Mr. Johnson's course in receiving them, and they have accordingly been placed on file here with your dispatch.
“ It may be observed, however, that Mr. Blumenthal's statement and the surrender of his passports do not necessarily reinvest him with German nationality, but merely evidence his renunciation of liis naturalization in the United States, according to Article IV. of the convention of 1868 with North Germany. Whether Germany will readmit him to citizenship is another thing.
“ In a general way, if it should appear that a naturalized American citizen, by any voluntary act recognized or prescribed by German law, has resumed his German allegiance or been readmitted to German nationality, the surrender of the passport of such a person may properly be demanded."
Mr. Olney, Sec. of State, to Mr. Uhl, ambassador to Germany, Dec. 21,
1896, For. Rel. 1896, 221.
The “ presumption " that a naturalized citizen of the United States of German origin intends "to take up his permanent residence in Germany and to renounce his American naturalization only be entertained after two years' residence in Germany. Earlier than that, renunciation of acquired status requires some positive act of resumption.”
Mr. Hay, Sec. of State, to Mr. Jackson, chargé at Berlin, No. 912, July 25,
1899, MS. Inst. Germany, XXI, 64. If a naturalized citizen, who, on his ret Germany, is put into the
army, does not protest on the ground of his American citizenship, the burden of proof is on him to show that he did not intend to renounce his naturalization. (Ibid.)
3. TREATY WITH ECUADOR.
By Art. II. of the naturalization treaty between the United States and Ecuador of May 6, 1872, “If a naturalized citizen of either country shall renew his residence in that where he was born, without an intention of returning to that where he was naturalized, he shall be held to have reassumed the obligations of his original citizenship, and to have renounced that which he had obtained by naturalization;" and by Art. III. it is provided : “A residence of more than two years in the native country of a naturalized citizen, shall be construed as an intention on his part to stay there without returning to that where he was naturalized. This presumption, however, may be rebutted by evidence to the contrary."
The effect of these articles was discussed in the case of Julio Romano Santos, a naturalized citizen of the United States, of Ecuadorian origin, who was arrested and imprisoned in Ecuador, in 1884, on a charge of implication in a revolutionary movement by General Alfaro. Ecuador claimed that he had resumed his original citizenship, while the United States maintained the contrary.
In the course of the discussion, Mr. Bayard, May 1, 1885, said:
“ It is the part of the sovereignty of every nation to prescribe the terms on which the allegiance of its own citizens shall be acquired and preserved. In the treaty with Ecuador the United States waive a part of such right of decision by admitting that two years' residence in Ecuador may create a presumption that their citizen intends to remain there. By stipulating for the right of rebuttal evidence on this point of intention, the United States wholly and absolutely regain that right of deciding as to the status of their citizens in a given case. That right is not transferred in any part to Ecuador; it is to be exercised exclusively by the United States as an attribute of their sovereignty. And Ecuador can not meet that reserved right by any mere denial of the sufficiency of the rebutting evidence which may be satisfactory to the United States. The only privilege of surrebuttal which might remain open to Ecuador would be to show that the party had done some act working an overt, voluntary, and positive renunciation of his United States citizenship of which the laws of Ecuador take cognizance or which they may prescribe as a condition to the acquisition or recovery of Ecuadorian citizenship. In other words, no surrebuttal is admissible as to intent, but must rest on the full ascertainment of legal fact.”
The Government of Ecuador did not admit this construction of the treaty. On the contrary, it maintained its right to participate in the decision of the question of Mr. Santos' intent with respect to his resi