from the laws which prescribe and enforce it, and he remains liable, in spite of any contract he may enter into in the mean time of new allegiance to a foreign power, to have these laws executed against him whenever he returns within the territorial limits and jurisdiction of his native country." Baron Manteuffel, in his reply of the 28th of February, says: "As, however, the Government of the United States considers that it is not for its interest to make the admission of an emigrant, as citizen, dependent on the exhibition of a document proving that he had dissolved the ties by which he was attached to his old country, it is much to be feared that difficulties will still occasionally rise. "Rarely will the Prussian government refuse the subsidiary issue of an emigration permit to individuals who, in their infancy, were taken from His Majesty's territory by their parents, except in cases when there had been a judgment of a Prussian court against the applicant. "At the close of your note of the 15th instant, you still quote section 23 of the law of the 21st of December, 1842. I permit myself to request you will notice, sir, that the term of ten years fixed for the return to Prussia of a subject of His Majesty only runs from the 1st of January, 1843; and that if said paragraph authorizes the government to consider an uninterrupted absence of more than ten years as importing the loss of the quality of a Prussian subject, it does not, nevertheless, dispense the absentee from duties which he ought to discharge while he was a Prussian." Several more conscription cases are given in the Senate documents, but the next document of importance is a dispatch from Mr. Wright, (who had succeeded Mr. Barnard,) dated September 28, 1858, in which he states: "No American consul or minister can shield from impressment a United States citizen born in Prussia. Is it possible that there is no remedy for this state of things? My opinion is, that if a decided and firm stand be taken by our Government during the present peculiar position of affairs in Prussia, it will lead to good results. It is certainly worthy of a trial." Mr. Wright having furnished the United States Government with information which he had procured from the Prussian government respecting the laws of enlistment and expatriation, (see laws of Prussia,) continued to urge the necessity of steps being taken to protect the interests of United States naturalized citizens; and on the 8th of July, 1859, Mr. Cass furnished him with instructions asserting the right of the United States to carry to much greater lengths than they had hitherto done the doctrine of the immunity from native allegiance and its duties conferred by foreign naturalization:2 "The right of expatriation cannot at this day be doubted or denied in the United States. The idea has been repudiated ever since the origin of our Government, that a man is bound to remain forever in the country of his birth, and that he has no right to exercise his free will and consult his own happiness by selecting a new home. The most eminent writers on public law recognized the right of expatriation. This can only be contested by those who, in the nineteenth century, are still devoted to the ancient feudal law with all its oppression. The doctrine of perpetual allegiance is a relic of barbarism, which has been gradually disappearing from Christendom during the last century." Mr. Cass then argues that the United States expressly recognize the right of expatriation by requiring applicants for naturalization to take an oath renouncing their native allegiance: "The moment a foreigner becomes naturalized, his allegiance to his native country is severed forever. He experiences a new political birth. A broad and impassable line separates him from his native country. He is no more responsible for anything he may say or do, or omit to say or do, after assuming his new character than if he had been born in the United States. Should he return to his native country he returns as an American citizen, and in no other character. In order to entitle his original government to punish him for an offense, this must have been committed while he was a subject and owed allegiance to that government. The offense must have been complete before his expatriation. It must have been of such a character that he might have been tried and punished for it at the moment of his departure. A future liability to serve in the army will not be sufficient, because before the time can arrive for such service he has changed his allegiance and become a citizen of the United States. * In my letter to Mr. Hofer of the 14th ultimo I confine the foreign jurisdiction, in regard to our naturalized citizens, to such of them as 'were in the army or actually called into it' at the time they left Prussia, that is, to the case of actual desertion or a refusal to enter the army after having been regularly drafted and called into it by the government to which at the time they owed allegiance.” There is another dispatch from Mr. Cass to Mr. Wright, of the 12th of May, 1859, in the same sense, in which he remonstrates against a declaration of Baron Manteuffel "that from the existing laws of Prussia no former subject of the King, whatever his co dition may be, has the right of claiming his re-admission into Prussia,” as inconsistent with the rights of United States citizens under treaty with Prussia.3 United States Senate documents, 1858-'60, vol. ii, p. 1364. Ibid., p. 133. Ibid., p. 241. "Under our treaty with Prussia there can be no doubt that American citizens who owe no service to Prussia, and have broken no Prussian law, have a right to visit and reside in Prussian territories without being in any way molested by the government." The note from Baron Manteuffel here referred to is not published. There is no further mention of the conscription of naturalized Americans in Prussia in the published correspondence until May 6, 1862, when Mr. Seward writes to Mr. Judd that the question must be postponed until the United States and Prussia have been relieved from present anxieties. This dispatch was called forth by the release from the army, as an act of comity, of two naturalized Americans, for which Mr. Seward instructs Mr. Judd to thank the Prussian government. In March, 1863, Mr. Seward wrote to Mr. Judd: "Instances have occurred where Europeans who have become naturalized citizens of the United States have left the country when their services were required, and returned to Europe to avoid needful military duty here, and then have invoked the protection of the United States to screen them from military duty there. Henceforth you will make no further applications in these military cases without specific instructions." Nor does anything on the subject appear in the papers relating to foreign affairs for 1864-'65. Mr. Judd revived the controversy by calling Mr. Seward's attention, on the 9th of August, 1865, to the position of naturalized Americans, many of whom, having acquired the rights of United States citizenship under the act of Congress by service in the United States Army, had returned to Prussia at the conclusion of the civil war and were now threatened with compulsory conscription. Mr. Wright was re-appointed minister in September, 1865, and shortly afterward recommenced an agitation on behalf of naturalized Americans. He reported to Mr. Seward that during that year at least five hundred naturalized Americans had returned to Prussia, liable to military duty according to Prussian law; but that the Prussian authorities did not succeed in placing in the army one in a hundred. As an instance he forwarded to Mr Seward a copy of a note from Baron Thile, stating that one Breiger a naturalized American, had been condemned to a fine of 50 thalers, or one month's imprisonment, for having left the country with intention of avoiding military duty; but that the Prussian government would allow him to make a short stay in Prussia, on submitting to the judgment and paying costs. In November Mr. Wright had an interview with Count Bismarck, who said that "it would be almost impossible to change by legislation the Prussian laws, in view of the prejudice among the German peasants that, as all Prussians are subject to military duty, the returning adopted citizens would be exempt," and added "that the subject could only be adjusted by some treaty arrangements with the United States.” As a basis for such an arrangement Count Bismarck suggested "exemption to all Prussian subjects returning to their native land who had left before their seventeenth year, and exemption also to all other persons who were not in the army or notified to enter at the time of leaving, and who shall have been out of the country for years." Count Bismarck further suggested that such a treaty might be brought about by a Prussian proposal for a reconsideration of the extradition treaty of 1838, especially with regard to deserters; upon which the United States might make a counter-proposal for a convention on the subject of their naturalized citizens. On the 2d day of December Mr. Seward' furnished Mr. Wright with the following instructions: "Considerations of ease and policy prevailed with this Department to allow the subject to rest during the continuance of the war. We became even less anxious upon the subject when it was seen that worthless naturalized citizens fled before the requirements of military service by their adopted Government here, and not only took refuge from such service in their native land, but impertinently demanded that the United States should interpose to procure their exemption from military service exacted here. "Those circumstances, however, have passed away and the question presents itself in its original form. The United States have accepted and established a government upon the principle of the rights of men who have committed no crime to choose the state in which they will live, and to incorporate themselves as members of that state, and to enjoy henceforth its privileges and benefits, among which is included protection. This principle is recommended by sentiments of humanity and abstract justice. It is a principle which we cannot waive. It is not believed that the military service which can be procured by any foreign state in denial of this principle can be impor tant or even useful to that state. The President desires that you will present the subject to the serious consideration of Count Bismarck. In doing so you will assure him Parliamentary Paper "North America." No. 2, 1862. United States papers relating to foreig affairs, 1861-'62. United States papers relating to foreign affairs, 1862-'63, vol. ii. p. 1020. United States Executive Documents, 3d sess. 38th Congress, vol. iv. United States Diplomatic Correspondence, 1865, vol. iii, p. 60. 5Ibid., p. 64. Ibid., p. 66. Ibid., p. 68. that we shall be ready to receive and consider with candor any opinions upon the subject that the Prussian government may think fit to communicate, and any suggestions relative to the extradition laws of the two countries." *** On the 16th of December Mr. Wright transmitted to Mr. Seward a memorandum with which he had been furnished by Baron Thile, showing the amendments which the Prussian government considered might be made in the extradition treaty, and adding: "Advantages respecting the legislation on the nationality of Prussian subjects which could eventually be conceded to Prussian subjects who are or wish to become citizens of America: "1. It would be granted that, after an absence of ten years from Prussia, not only the rights, but also the duties and obligations of a Prussian subject toward his native country cease to prevail. This is a principle which till now has been followed by Prussian authorities only in some isolated cases, but which has not been generalized nor is law in the country. "2. The article 110 of the Prussian code says: 'Whosoever leaves Prussia with a view to avoid his enlistment in the royal army will be punished, either by a fine of 50 or 100 thalers, or by imprisonment from one month to one year.' "An exception from this general rule might be introduced in favor of such individuals who leave Prussia before the age of seventeen years.”2 On the 15th of January, 1856, the sentence on Breiger was annulled.3 In February Mr. Seward sent to Mr. Wright two letters from naturalized Americans in the Prussian army, and directed him to request their release as an act of favor.1 At an interview in March, Count Bismarck suggested, as a compromise, that seven years should be the term of absence to constitute expatriation, instead of ten, and remarked upon the impossibility of Prussia changing her laws on the subject of military duty. To abolish these laws, he said, would be plainly impracticable for a country situated like Prussia; while to relax their stringency in favor of American emigrants beyond the concessions (as he termed them, alluding to his protocol proposals) would not only amount to the practical abrogation of said statutes in case of all that had emigrated to the United States, or intended to do so in the future, but would be actually offering a sort of emigration premium to all able-bodied men who had attained the age when they might be called out for active service in the army. Mr. Wright urged upon Mr. Seward to accept Count Bismarck's proposal. Mr. Seward replied, April 9, 1866, that he would be happy to discuss the matter with Count Bismarck, but it must be in direct communication with the Prussian government, and not at second-hand; that he could not give a formal answer to an argument presented not in writing, but orally, and made known only by Mr. Wright's report. The Austro-Prussian war gave rise to a great number of conscription cases. In most instances the offenders were either pardoned or let off with a fine. On the 24th of September, 1866, Mr. Wright reports, "There is some doubt whether the amnesty will embrace the cases of our adopted citizens who have been fined, during their absence, for neglect of military duty. Baron Roon, minister of war, will be adverse to our view of its construction. Count Bismarck will, if possible, extend its provisions to all such cases."6 On the same date Mr. Seward instructed Mr. Wright to "suggest to Count Bismarck the inquiry, whether it would not be deemed consistent now with the dignity and greatness of Prussia to recognize the principle of naturalization as a natural and inherent right of manhood. In reflecting upon the subject I am not able to believe that Prussia, any more than the United States, can or need to rely upon compulsory military service by subjects who have incorporated themselves as members of foreign states. "Secondly, I know of no circumstances which would tend to place Prussia on an elevation so high among the modern nations as the adoption of that principle which lies at the basis of the American Republic." This closes the published correspondence with Prussia on this subject." On the 22d of February, 1868, a treaty was signed at Berlin between the North German Confederation and the United States of America, consisting of six articles, of which the following are the most important: 1. Every subject of the North German Confederation naturalized in the United States of America, and having resided there during five years, shall be considered by the North German Confederation as an American subject, and treated as such. Every American citizen naturalized in the North German Confederation as an American subject, and having resided there five years, shall be considered by the Government of the United States of America as a German subject, and treated as such. 2. Every naturalized subject of either state, who may return to the land of his birth, cannot be prosecuted for any criminal offenses, unless they shall have been committed by him previously to his expatriation. 2 Ibid., p. 4. 3 Ibid., p.. 6. 4 Ibid., p. 10. United States Diplomatic Correspondence, 1866, p. 2. 4. Every naturalized subject, who, having no intention of returning to the country of his adoption, resides continuously during two years in his former country, is presumed to have renounced his naturalization. For this and other similar treaties see p. 149. GERMAN STATES. As the minor German states are now for the most part incorporated in the North German Confederation, it will probably be sufficient to reply to the correspondence without giving a summary of it: Oldenburg, Senate documents, 1st session 36th Congress, vol. ii, pp. 129, 221; Hanover, ditto, p. 143; Frankfort, pp. 231, 235; Hamburg, p. 171. It appears from these latter papers that a system existed by which a citizen of Hamburg who wished to expatriate himself was required to procure a discharge (“ austritt") from the "nexus,” a law bureau appointed for the purpose. This discharge was only given on proof being afforded that the applicant had fulfilled his military obligations. (Letter from syndic of Hamburg, June 18, 1830.) Bremen, ditto, pp. 191, 195, 211. In a dispatch to Mr. Schleiden, of the 9th of April, 1859, Mr. Cass thus explains himself: "It is undoubtedly true that this Government has acquiesced in the opinion expressed by Mr. Wheaton, that when a citizen who has been liable to military duty leaves his own country without permission and without having performed this duty, and is naturalized in another country, he may be held to discharge his liability whenever he is found again in his native state. This opinion, however, is regarded by this Government as applying not to cases of inchoate liability, but to cases only where the liability has been complete." This correspondence turned upon the question of the right of Bremen to surrender to another German state a naturalized American owing military duty to such state. The United States contended that such a surrender could not be acquiesced in; and Bremen maintained that there was a double duty to do it-1st, in virtue of the existing arrangements on the subject with the other states; and 2d, because a defaulter from military service in another state was a defaulter from the Federal army, of which the Bremen contingent formed a part. AUSTRIA. The laws of Austria regarding expatriation seem to have been sufficient to prevent any questions arising with regard to the conscription of naturalized Americans in the Austrian army; at all events no correspondence on the subject is published in the United States Congress papers. There are, however, two cases in which the rights of subjects of the Austrian Empire naturalized in the United States have been discussed. The first and best known is that of Martin Koszta.1 Martin Koszta, a Hungarian, was one of the refugees of 1848-49. He went to Turkey, where he was arrested and imprisoned at Kutahieh, but released on condition of leav ing the country. He came to the United States, and made the usual declaration of intention to become naturalized. He then returned to Turkey in 1853, and went to Smyrna, on commercial business, where he obtained from the United States consul a teskereh, (or traveling pass,) stating that he was entitled to American protection. On the 21st of June, 1853, Kozta was seized by some persons in the pay of the Austrian consulate, and taken out into the harbor in a boat; they then threw him into the sea, and he was picked up by a boat from the Austrian man-of-war Hussar. The United States consul went on board to remonstrate, but the captain of the Hussar persisted in retaining Koszta. On being informed of the circumstances the United States chargé d'affaires at Constantinople requested the captain of the United States ship of war Saint Louis to demand Koszta's release, and, if necessary, to have recourse to force.* The Saint Louis then went down to Smyrna, and the captain, in pursuance of his instructions, stated to the commander of the Hussarthat unless Koszta was at once delivered to him he should take him by force of arms. As such a conflict would have led to the destruction of the greater part of the shipping, and probably of the town, the French consul offered his mediation, and Koszta "Hertslet's State Papers," vol. xliv, p. 925-1042. Dana's edition of "Wheaton," note, p. 146. State Papers," vol. xliv, p. 935. was then given over to his care to be kept until the decision of the respective Governments was ascertained. The matter was eventually compromised by an arrangement being come to between the Austrian internuncio and the United States minister at Constantinople that Koszta should be shipped back to the United States, the Austrians reserving the right to proceed against him in case he returned to Turkey. "Le gouvernement impérial se réserve cependant de procéder contre cet individu conformément à ses droits, dès qu'il serait surpris une autre fois sur le territoire ottoman." It is to be remarked that the Turkish government had protested against the invasion of their territorial jurisdiction by the Austrian consul and captain.2 On the 29th of August, 1853, the Austrian chargé d'affaires at Washington3 presented a formal remonstrance to the United States Government, protesting against the claim of the United States to afford protection to Koszta, and urging them to disavow the conduct of their agents, and to grant reparation for the insult offered the Austrian flag. Mr. Marcy replied on the 26th of September, 1853.4 In this note, which is of great length, Mr. Marcy gives a full account of the affair, and maintains the propriety of the course adopted by the United States minister, consul and captain, pointing out that, independently of the question whether Koszta was or was not entitled to American protection, the Austrians could have no right to seize him upon Turkish soil.' The following are some of the principal passages in which Mr. Marcy deals with the right of Koszta to United States protection: There is great diversity and much confusion of opinion as to the nature and obligations of allegiance. By some it is held to be an indestructible political tie, and though resulting from the mere accident of birth, yet forever binding the subject to the sovereign; by others it is considered a political connection in the nature of a civil contract, indissoluble by mutual consent, but not so at the option of either party. The sounder and more prevalent doctrine, however, is, that the citizen or subject, having faithfully performed the past and present duties resulting from this relation to the Sovereign power, may at any time release himself from the obligation of allegiance, freely quit the land of his birth and adoption, seek through all countries for a home, or select anywhere that which offers him the fairest prospect of happiness for himself and his posterity. The proposition that Koszta at Smyrna was not an Austrian subject can be sustained on another ground. By a decree of the Emperor of Austria of the 24th of March, 1832, Austrian subjects leaving the dominions of the Emperor without permission of the magistrate, and a release of Austrian citizenship, and with an intention never to return, become 'unlawful emigrants,' and lose all their civil rights at home. * * * * "Mr. Hulsemann, as the undersigned believes, falls into a great error, an error fatal to some of his most important conclusions, by assuming that a nation can properly extend its protection only to native-born or naturalized citizens. This is not the doctrine of international law, nor is the practice of nations circumscribed within such narrow limits. This law does not, as has been before remarked, complicate questions of this nature by respect for municipal codes. In relation to this subject it has clear and distinct rules of its own. It gives the national character of the country, not only to native-born and naturalized citizens, but to all residents in it who are there with, or even without, an intention to become citizens, provided they have a domicile therein. Foreigners may, and often do, acquire a domicile in a country, even though they have entered it with the avowed intention not to become naturalized citizens, but to return to their native land at some remote and uncertain period, and whenever they acquire a domicile, international law at once impresses upon them the national character of the country of that domicile. It is a maxim of international law that domicile confers a national character; it does not allow any one who has a domicile to decline the national character thus conferred; it forces it upon him often very much against his will, and to his great detriment. International law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen. It concedes to every country the right to protect any and all who may be clothed with its nationality." Mr. Marcy then quotes several authorities to show what constitutes domicile:7 "As the national character, according to the law of nations, depends upon the domicile, it remains as long as the domicile is retained, and is changed with it. Koszta was therefore vested with the nationality of an American citizen at Smyrna, if he, in contemplation of law, had a domicile in the United States." "There may be a reluctance in some quarters to adopt the views herein presented relative to the doctrine of domicile and consequent nationality, lest the practical assertion of it might in some "State Papers," vol. xliv, p. 1015. 2 Ibid., p. 971. Ibid., p. 972. 4 Ibid., p 984. Ibid., p 987. Ibid., vol. xliv, p. 996. Ibid., vol. xliv, p. 998. |