or produce the proof which the consul required, their citizenship being derived, not from their parents' naturalization, but from the fact of their American birth. The provisions of the statutes on this subject and the decisions of the Federal courts, as well as this Department's repeated rulings, are based primarily upon the fourteenth amendment to the Constitution of the United States, which provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside." You will instruct the consul at Hamburg in this sense. I am, etc., DAVID J. HILL, CITIZENSHIP OF A SON BORN OF AMERICAN PARENTS TEMPORARILY SOJOURNING IN GERMANY. Mr. Hill to Mr. White. No. 1210.] DEPARTMENT OF STATE, . Washington, June 14, 1901. SIR: I inclose herewith copy of a letter from Bernard D. Thorner, who was naturalized on April 4, 1887, in the city court of Birmingham, Ala., and who received a passport, No. 219, dated January 14, 1890, from the legation of the United States at Berlin for himself, wife, and minor son, Eugene Guido, then 3 months old. It appears from Mr. Thorner's statement that the son was born in Germany while his parents were on a temporary visit there, and that notice of the birth was given to the legation at Berlin, which failed to make record of it. He contemplates sending this son to Germany for the purpose of study, and fears that by reason of his own birth and that of his son in Germany the lad will, upon reaching the military age, be called upon for service. He therefore desires that the American citizenship of his son be recognized by the German Government. There is no doubt that the boy is an American citizen under section 1993 of the Revised Statutes, and is entitled to all the protection this Government can give him as such. The Department will be pleased, therefore, to have you do what you can to have his American citizenship recognized by the German Government. I am, etc., DAVID J. HILL, No. 1772.] Mr. Jackson to Mr. Hay. EMBASSY OF THE UNITED STATES, SIR: I have the honor to report that on the receipt, on June 28, of the Department's instruction No. 1210, of June 14, 1901, intervention was made in behalf of Eugene Guido Thorner, to the end that he be a Not printed. recognized as an American citizen and permitted to come to Germany for a somewhat prolonged course of study, and that, no answer having been received from the foreign office in the meantime, attention was again called to the case on September 27. To-day, however, I have been notified by the foreign office that there is nothing to prevent the American citizen, Eugene Guido Thorner,. from making a prolonged stay in Germany. In this connection I have to state that there are at the present moment no pending military cases of long standing, and that there are fewer such cases pending at all than at any time since my connection with this mission-a period of almost eleven years. I have, etc., JOHN B. JACKSON. FINE ON PAUL N. FRIEDLAENDER FOR "UNAUTHORIZED" EMIGRATION. No. 1665.] Mr. White to Mr. Hay. EMBASSY OF THE UNITED STATES, SIR: I have the honor to invite attention to the case of one Paul N. Friedlaender, a naturalized American citizen of Germar origin, and to request that such instructions may be given in regard thereto as may be found appropriate. Friedlaender was naturalized at Chicago, on May 28, 1897, after having resided in the United States for a full term of five years. He had had permission to emigrate from Germany and had regularly renewed his German passport until the time of his becoming an American citizen. His mother, who lives at Potsdam, near Berlin, was called upon about a year ago to pay a fine on his account-for being absent without permission and she had become involved in correspondence with the local authorities. In March, 1901, Friedlaender applied to the embassy for its assistance, and on the 23d of that month. a note (F. O. No. 918) was addressed to the foreign office asking that such steps might be taken as were necessary to effect the return to Friedlaender of his American papers, the refunding of any money which may have already been paid on account of his failure to report for military service, the cessation of all proceedings against him which may have been taken on the same account, and his recognition as an American citizen." 66 To this note the foreign office replied, under date of June 12, returning Friedlaender's naturalization certificate and certain other papers, and stating that he had been sentenced to pay a fine of 30 marks or to undergo imprisonment for ten days by a local court, on April 10, 1900, on account of his "unauthorized emigration," but that Friedlaender had not yet paid the fine and costs and as he was in America there was no necessity, at present, to take steps looking toward his pardon. The embassy at once replied (F. O. No. 969) that Friedlaender expected to return to Germany upon a visit during the present year, and requested that such steps might be taken as were necessary to set aside the sentence against him. Under date of June 28, the foreign office addressed another note to the embassy, advising that Friedlaender petition the Emperor directly in order that the judgment against him might be set aside before his return to Germany, and suggesting that, in order to expedite matters, the embassy should support such a petition when made. To this note the embassy replied at once (F. O. No. 987) requesting a reconsideration of the case, as Friedlaender's offense was merely emigration without permission, and not desertion, and as "under the circumstances, in the opinion of the embassy and in accordance with precedent, the case falls within the provisions of the treaty of 1868, and the two Prussian ministerial decrees of July of that year, copies of which are transmitted herewith. As the Prussian ministry of justice has decreed that 'die durch strafbare Auswanderung verwirkte Strafe nicht zur Vollstreckung gebracht werden soll,' there would appear to be no reason for Friedlaender's making a formal petition for pardon." * * * To this note the foreign office has now replied, under date of the 8th instant, that the ministerial decrees referred to above presupposed the actual return to Germany of the person in question, that it was probable that Friedlaender's fine would be remitted by an act of clemency, and that it would be advisable for him to send in a petition to the Emperor before coming to Germany, as if he did not do so he might be called upon to pay the fine and take the consequences. The embassy will make no reply to this note for the present. The foreign office's advice has, however, been communicated to Friedlander, who has been informed that while the embassy holds that he is entitled to visit Germany without molestation under the terms of the treaty itself, and that no pardon is necessary, it might enable him to avoid possible trouble if he acted upon this advice. He has been requested to inform the embassy with regard to his decision and his movements in the event of his coming to Germany. Without instructions, however, the embassy would not feel at liberty to give support to any petition which Friedlaender may determine to send in, as by so doing it might be considered that the embassy admitted the correctness of the position now taken by the foreign office. If it is necessary for Friedlaender to send in a petition in order to secure such rights as would appear to be his under the treaty, there is no reason why the same course should not be followed by every American citizen of German origin who desires to visit his former home, and this, under existing circumstances, the embassy is not prepared to admit. I have, etc., ANDREW D. WHITE. Mr. Hill to Mr. White. No. 1230.] DEPARTMENT OF STATE, SIR: Your No. 1665, of the 10th instant, reports that Paul N. Friedlaender, a native of Germany, was naturalized at Chicago May 28, 1897, after having resided in the United States for a full term of five years; that his mother was called upon about a year ago to pay a fine on his account, and that the embassy had addressed the foreign office asking the refunding of any money already paid on account of his failure to report for military service and the cessation of all proceedings against him which may have been taken on the same account and his recognition as an American citizen. In the second paragraph on the first page of your dispatch you state that Friedlaender had permission to emigrate from Germany, while in the fourth paragraph of the second page you state that "his offense was merely emigration without permission." You further state that Friedlaender had been sentenced to pay a fine or suffer imprisonment by the judgment of a local court April 10, 1900, on account of his unauthorized emigration; that the German foreign office has advised that Friedlaender petition the Emperor directly for a vacation of the judgment or remission of the penalty, and suggested that in order to expedite matters his petition be supported by the embassy, which the latter declined to do for the reason that the case is governed by the naturalization treaty of 1868 and by the two ministerial decrees of July of that year, and that since the Prussian minister of justice has decreed that as the penalty for punishable emigration is not to be executed there would appear to be no reason for a formal petition of pardon. To this the foreign office replied, advising that Friedlaender send in a petition before coming to Germany, as otherwise a demand for payment will be made upon him and difficulties for him will arise therefrom, as then the remission of the penalty will not at that time have been introduced in the official way. You express doubt whether you should give support to any petition by Friedlaender, as by so doing it might be construed as an admission of the correctness of the position taken by the foreign office, rendering it necessary to pursue the same course in respect of every American citizen of German origin desiring to visit his former home. The naturalization convention of 1868 provides: ARTICLE I. Citizens of the North German Confederation who 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 article shall apply as well to those already naturalized as those hereafter naturalized. ARTICLE II. A naturalized citizen of the one party remains liable to trial and punishment for an action punishable by the laws of his original country and committed before his emigration, saving always the limitations established by the laws of his original country. * ARTICLE IV. If a German naturalized in America 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. ** The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country. The circular of the minister of justice, dated July 5, 1868, states that it was the prevailing intention of the treaty that in conformity with its second article the punishment incurred by punishable emigration is not to be brought to 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 with the first article of the treaty. The circular of the minister of the interior, dated July 6, 1868, states that it was the prevailing intention of the treaty that in conformity with Article II of the 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 prose cution 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 legally declared, should not be consummated if the person has acquired in America the right of citizenship in conformity with Article I of said treaty. A State has the unquestionable legal right to regulate under penalties either the emigration of its subjects or the immigration of aliens, as also to punish its nationals for failure to report for military service, except so far as restrained by treaty (1 Rivier, 269; 2 Wharton, sec. 171). A State does not, however, necessarily take official notice of the naturalization of its subjects as citizens of another State. Consequently, in the absence of such official knowledge, it may, if authorized to do so by its own laws, proceed against them by judicial trial and condemnation, even in their absence. With such treatment by it. of its own subjects no other State has any concern. As the case is stated, Friedlaender was a native-born German subject and appears to have been condemned as for punishable emigration. If he had received permission to emigrate, the judgment was not unlawful, though erroneous in point of fact, unless the fact was shown at the trial; if he had not received such permission, it was not unlawful unless at the trial proof was submitted showing his naturalization in the United States and his compliance with the terms of the treaty. As the case is stated, it does not appear that the judgment was unlawfully rendered, although erroneous. And as the German court or Government would not know this error without evidence of the facts which brought Friedlaender within the exemption of the treaty, it is entirely proper that he should take steps before the court to have the judgment vacated and set aside, on proof of the facts which would have constituted a good defense of the action if they had been presented at the trial, or that he should petition the Emperor to vacate the judgment, submitting the facts and proofs necessary to show that the judgment was in fact given in violation of the treaty. While this may result in some inconvenience in practice, it is the course pursued in the United States in analogous cases. If a judgment by default has been rendered against a person during his absence, provision is usually made for his application to the court, within a given period, to have the judgment set aside for error of law or fact. If a person has been condemned as a criminal, he may have judicial proceedings to correct an erroneous conviction, and in the last instance may appeal to the Executive to grant a pardon. The advice of the German foreign office that an appeal be made to the Emperor to set aside the judgment on the grounds stated in your dispatch, so far from involving a concession that the conviction was not erroneous in fact, may be accepted in the sense that it was erroneous because rendered in violation of the treaty, as authentically interpreted in the circulars. A pardon would be inappropriate as implying a guilt which is shown not to exist in fact, yet if this is the only way the Emperor can lawfully proceed, the proceeding should be accompanied by you with this interpretation. The better course in all such cases is for the naturalized American to have proceedings instituted in the proper court to vacate the judgment, if such remedy is given by the local laws; and in all cases if they have notice they should make defense by counsel if allowable to |
