"I sr i ED\^^Ri);■ m^aiiMSfii d ^1- r^P^!^ N-^fs '£V ^riE4^ .... l'= &^^ h'M MffliiiaJ Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924005223098 Cornell University Library JX 4270.G3T58 Germany's claims upon German-Americans I 3 1924 005 223 098 Germany's Claims UPON German-Americans IN GERMANY A DISCUSSION OK GERMAN MII.ITABY AND OTHER LAWS WHICH MAY AFFECT GERMAN-AMERICANS TEMPORA- RILY IN GERMANY TOGETHER WITH SOME COM- MENT UPON EXISTING TREATIES Edward W. S. Tingle, A. B. (Harv.) Formerly United States Consul Brunswick Germany PHILADELPHIA T. & J. W. Johnson & Co. , ,1903 Copyright, 1903 BY T. & J. W. Johnson & Co. INTRODUCTION. One of the most frequent and perplexing ques- tions arising in United States Consulates — situ- ated in Germany — is the determination of the immunities which German-Americans, that is to say, born Germans who have become citizens of the United States, secure by virtue of their citizen- ship as against the application to them of German military and other law. The different laws bearing upon individual cases not being always at hand, it is not easy at times to give inquiring German-Americans, tem- porarily in Germany or who may intend visiting their native land, sufficiently reliable information. This little volume is written to overcome the diffi- culty by rendering it possible for all United States Consuls, and such other persons as may be in- terested, to have in hand a book, not too technical and not too detailed, which will give them accu- rate information as to just how far German mili- tary law in all possible cases may be made to apply to former German subjects who have forsaken their allegiance to any State of Germany to as- sume citizenship of the United States. The orders, laws and treaties quoted have been drawn from official sources and where especialh'' important, and that no doubt may exist as to the interpretation of a word or phrase, are quoted in the original as well as by translation. That fellow members of the Consular Corps may find the volume useful is the hope of The Author. United States Consulate, Brunswick, Germany, May 30th, 1896. Note. — This volume was offered by the writer to the State Department for publication by it for the use of the Consular Service and was formally accepted by Secretary Sherman for that purpose. Though in use in the Department in manuscript, its publication was delayed for various reasons and the writer given the option of offering it to a publishing house. Advantage of that fact has been taken to revise the text and bring it up to date. Philadelphia, January, 1903. ACKNOWLEDGMENT. Grateful acknowledgment is due from the writer to his former preceptor, Prof, von Bar, pro-rector and professor of International Law at the University of Gottingen, Germany, who kindly reviewed this work in manuscript from the standpoint of international law and approved it; to Herr Justizrath Ritter, of the legal department of the German Army, whose extensive practical experience as a military judge with the questions discussed made his approval, given after thorough examination, of exceptional value and to that val- uable consular officer of the United States, Con- sul-General Mason, of Berlin, Germany, whose profound experience gained by twenty years of continuous consular service lends a peculiar worth to the approval which the work, also sub- mitted to him in manuscript, received from him. TABLE OF CONTENTS References are to sections CHAPTER I. OF UNITED STATES CITIZENSHIE AND HOW IT IS ACQUIRED. Consul's first duty, i. German Americans in the United States, 2. How American citizenship is secured, 3. Service in navy, 4. Proofs of citizenship, 5. CHAPTER n. WHEN GERMANY RECOGNIZES AMERICAN CITIZEN- SHIP AND HOW FAR. Germany's recognition of citizenship, 6. Position of Baden, 7. Position of Bavaria, 8. Position of Hesse, 9. Germany's interpretation of offenses, 10. K TABLE OF CONTENTS. CHAPTER III. GERMAN MILITARY REQUIREMENTS. WHEN A GERMAN MAY EMIGRATE WITHOUT BECOMING LIABLE TO THE GERMAN LAW AND HAV- ING EMIGRATED WITH LIABILITY WHEN HE MAY RETURN WITH- OUT BEING SUBJECT TO PUNISHMENT. Emigration without liability, il. Other classes of emigration, 12. Authority on non-liable emigration, 13. Cases in Hesse, 14. Completion of military service, 15. Minor children, 16. CHAPTER IV. WHEN A GERMAN-AMERICAN IS STILL LIABLE TO THE GERMAN MILITARY LAW — DESERTION AND ITS OFFICIAL DEFINITION WHEN MILITARY OFFENSES ARE OUTLAWED. Desertion, 17. Overstaying leave, 18. Disobedience of notice to serve, 19. Excuse for disregarding notice, 20. Desertion not forgotten, 21. Loss of American citizenship, 22. Two years' residence in Germany, 23. Serving with the colors, 24. Outlawing of offenses, 25. TABLE OF CONTENTS. XI CHAPTER. V. PUNISHMENT THAT MAY BE VISITED UPON GER- MAN-AMERICANS FOR INFRACTION OF GERMAN MILITARY LAW. The German subject to two courts, 26. What constitute offenses, 27. Penalties provided, 28. Annulment of judgment, 29. The military courts, 30. Deserter's avoidance of Germany, 31. Offenses seldom outlawed, 32. CHAPTER VI. POSSIBLE CASES OF RETURNING GERMAN-AMERI- CANS AND THEIR LIABILITY OR NON-LIABILITY. Twelve possible cases, 33. 1st — A. Emigration of a minor who returns without securing citizenship. 2nd — B. Minor born in the United States of German parents, who goes to Germany to live. 3rd — C. Born in Germany and returns from America an adult, but is not a citizen, through fail- ure of father to complete citizenship. Xll TABLE OF CONTENTS. 4th — D. Born in Germany, taken to United States, but brought back a minor after father had ac- quired citizenship, Sth — E. Born in the United States and brought to Germany as a minor after father's death, though after latter had become a citizen. 6th — F. Born in United States and goes to Germany after father's death, though an adult before father acquired citizenship. 7th — G. Emigrates as a minor to America after notice to serve has been given him, and acquires citizenship. Sth — H. Emigrates, though a member of the Reserves, without permission, and becomes a citizen. gth — I. Though a member of the Reserves, emigrates without permission, and after receiving notice lo present himself for service. loth — J. Though a member of the Reserves, emigrates to America, and after his arrival, but be- fore securing citizenship, is notified to serve. nth — K. A native of Alsace-Lorraine emigrates with- out permission, and acquires citizenship. I2th — L. Born in Germany, acquires citizenship in United States, and loses it by long resi- dence in Germany. TABLE OF CONTENTS. XIU CHAPTER VII. WHAT A GERMAN-AMERICAN RETURNING TO GER- MANY MUST DO TO AVOID PUNISHMENT FOR ALLEGED OFFENSES AGAINST MILITARY LAW AND HOW HE SHOULD PROCEED WHEN ACCUSED. Need of a passport, 34. Passport not sufficient, 35. Birth certificate desirable, 36. Pardon for offenses, 37. Renewal of passport, 38. Bodily defect, 39. Notifying the Consul, 40. CHAPTER VIII. GENERAL BEHAVIOR WHICH SHOULD BE OBSERVED BY GERMAN-AMERICANS RETURNING TO GERMANY TO AVOID CONFLICT WITH GERMAN LAW. THEIR DUTIES, PRIVILEGES AND RIGHTS. Demeanor desirable, 41. Danger of drawing comparisons, 42. Reference to the Emperor, 43. Lese Majeste, 43. Disrespect for the Government, 44. Assisting emigrants, 45. Conforming to regulations, 46. Strict obedience to law, 47. Freedom from taxation, 47a. XIV TABLE OF CONTENTS. CHAPTER IX. PROPER PROCEDURE OF A CONSUL WHOSE AID OR PROTECTION IS DEMANDED BY A GERMAN- AMERICAN IN GERMANY. When Consul may intervene, 48. No advice to evade the law, 49. When proceedings have begun, 50. No aid to wilful offenders, 51. No financial aid, 52. CHAPTER X. SUMMARY. Why detail is omitted, 53. Essential facts furnished, S3a. Invidious comparisons, S3b- Immediate intervention, S3c. Object of the book, 53d. TABLE OF CONTENTS. CHAPTER XI. THE NATURALIZATION TREATIES. Treaty with North German Union, 54. States comprised in North German Union, S4a. Treaty with Baden, S4b. Treaty with Bavaria, 54c. Treaty with Hesse, S4d. Treaty with Wiirttemberg, 546. CHAPTER XII. CONCLUSION. Acts of amnesty, 55. Appreciation of American citizenship, 56. CHAPTER I. OF UNITED STATES CITIZENSHIP AND HOW IT IS ACQUIRED. Consul's first duty, i. German Americans in the United States, 2. How American citizenship is secured, 3. Service in navy, 4. Proofs of citizenship, 5. Consul's First Duty. 1. The first duty of a United States Consul or other representative abroad of the United States when his advice or protection is demanded by anyone on the score of citizenship is to satisfy himself that the applicant is really a citizen of the United States. German Americans in United States. 2. Since the German-Americans in the United States exceed five millions in number and since many of them yearly visit their native country, it happens that Consuls and the Embassy of the United States in Germany have far more occasion to give advice and protection to German-Ameri- cans than to American citizens of any other na- 5 Germany's claims upon [2 tivity. It is for this reason that the writer will confine himself to a discussion of the rights, priv- ileges and duties of German-Americans as af- fected by the German law. How American Citizenship is Secured. 3. Let it first be considered how a person of German birth may become a citizen of the United States; when he is so regarded by his mother country; and what evidence he must produce to establish the fact of such citizenship, when re- quired. The born German secures this citizen- ship in two ways : First. Having emigrated to the United States and being twenty-one years of age or more, he declares as soon as he likes, before a court of record, his intention to become an American citi- zen and to renounce all allegiance to the German Emperor. He then receives a certified document stating this fact. This document forms the so- called "First papers." It confers, however, only a semi-recognition of him as a possible citizen. It does not put him on the same footing as the actual citizen and does not empower him to de- mand the protection of United States representa- tives in Germany, for in the eyes of that country he is still a German subject. To such a one, how- ever, in view of his eventual citizenship the good 3] GERMAN-AMERICANS IN GERMANY. 4 offices of the United States representatives may be extended so far as the obligation of courtesy may permit. He first becomes a citizen, entitled to all the rights of other American citizens — with the exceptions hereafter to be noted — when he has continued to reside in the United States five years, and at least two years after the issuance of his first papers (declaration of intention) re- ceives after application to a court of record a doc- ument popularly called "Second papers" or "Final papers" setting forth the fact of naturalization and admitting him to full citizenship. Should he have served in the United States Army, however, and have been honorably discharged, he may be- come a naturalized citizen at once upon applica- tion, being required to prove but one year's resi- dence, or should he have served uninterruptedly on an American war ship three years, he may en^ joy the same privileges, provided his declaration of intention has been made three years prior to his application for admission as a citizen. He is then entitled to the same consideration from United States representatives abroad as the na- tive-born citizen. Service in Navy. 4. An alien over 21 years of age who has served five years in the navy or one enlistment of 4 Germany's claims upon [4 three years in the marine corps may also be ad- mitted to citizenship upon proving honorable dis- charge without making previous declaration of in- tention. But section 16 of the Navy Personnel Act approved March 3, 1899, now makes the term of enlistment of all enlisted men in the navy four years and the Naval Appropriation Act of 1901, that of enlisted men in the marine corps also four years. Under date of November 25, 1902, the Judge Advocate General of the navy decided that the Act of July 26, 1894 (28 Stat. L. 124) made nec- essary a service of five years in either navy or ma- rine corps and that the change of the term of en- listment by the Navy Personnel Act could not modify this, stating however, the question is one for determination by the Courts. The second way in which a bom German may secure citizenship is that while yet under twenty- one years of age he accompanies his father to the United States and is still under twenty-one years of age when his father secures full citizenship. In this case, the citizenship of the father clothes also the children without further formality. It may be added, that the children of naturalized German-American citizens born while the parents are temporarily residing abroad, even in Germany, are citizens of the United States. Born Germans S] GERMAN-AMERICANS IN GERMANY. S under twenty-one going to America without their parents, or the parents of whom may have died during the children's minority without obtaining citizenship can obtain citizenship only through ap- plication to a court of record and the specific re- nouncing of all allegiance to any foreign power or potentate, but the child of one who has made his declaration of intention and who dies before securing naturalization is considered a citizen upon taking the oaths prescribed by law. The son of Germans residing in the United States, the parents never having acquired citizenship, must secure his citizenship by applying to the Court in the manner indicated above. It should be understood that what applies to a child accom- panying the father, applies also if, the father be- ing dead, the child emigrates with the mother. Proofs of Citizenship. 5. The German- American citizen, accordingly, being temporarily in Germany and requiring ad- vice or protection from the representatives of his adopted country must demonstrate to the repre- sentative that he has the right, conferred upon him by citizenship, to make such a demand. The obvious and simplest method for identification is, of course, the production of a passport, issued from the Department of State. It often happens, S Germany's claims upon [6 however, that German-Americans, as well as other citizens, very ill-advisedly, go abroad without a passport. The proper procedure then is to apply to the nearest Consul or Minister. The former is authorized to forward an application for a pass- port to the Minister, but may not issue one himself. In this case the applicant must exhibit either his naturalization papers, or a certified copy thereof. In case the applicant is the German- born son of a father who secured citizenship in America during his son's minority, then should he have no passport, he must exhibit his father's original papers. This once done and the identity of the applicant established, his right to demand active intervention in his behalf in all proper ways by his adopted country's representative may not be called into question and the latter must exert himself in the applicant's interest exactly as he would were the applicant a native-born citi- zen of the United States. 7] GERMAN-AMERICANS IN GERMANY. CHAPTER II. WHEN GERMANY RECOGNIZES AMERICAN CITIZEN- SHIP AND HOW FAR. Germany's recognition of citizenship, 6. Position of Baden, 7. Position of Bavaria, 8. Position of Hesse, 9. Germany's interpretation of offenses, 10. Germany's Recognition of Citizenship. 6. Germany recognizes American citizenship and the immunities it confers on her former sub- jects with certain limitations. The treaty be- tween the United States and the States of the North German Union concluded February 22, 1868, and proclaimed May 27, 1868 (Pp. 790-1 — Treaties and Conventions United States 1889) declares "Citizens of the North German Confed- eration who become naturalized citizens of the United States of America and shall have resided uninterruptedly in the United States five years shall be held by the North German Confederation to be American citizens and shall be treated as such." "A naturalized citizen of the one party on re- 7 GERMANY^S CLAIMS UPON [8 turn to the territory of the other party remains liable to trial and punishment for an action pun- ishable by the laws of his original country and committed before his emigration saving always the limitations established by the laws of his orig- inal country." "If a German naturalized in America renews his residence in North Germany without the in- tent to return to America he shall be held to have renounced his naturalization in the United States." Fosltlon of Baden. 7. A treaty was concluded with Baden on July 19, 1868, to the same effect, with certain provis- ions relating to military service which will be considered hereafter and with the following prt>- vision regarding the re-acquirement of Badener citizenship: "The emigrant from the one State who is to be held as a citizen of the other State shall not on his return to his original country be constrained to resume his former citizenship; yet if he shall of his own accord re-acquire it and re- nounce the citizenship, acquired by naturalization, such a renunciation is allowed and no fixed pe- riod of residence shall be required for the recogni- tion of his recovery of citizenship in his original country." 9] GERMAN-AMERICANS IN GERMANY. 8 Position of Bavaria. 8. The treaty on the subject of naturahzation concluded with Bavaria on May 26, 1868, is sim- ilar to that concluded with the North German Confederation with the exception that a Bavarian naturalized in the United States and returning to Bavaria, while held to have renounced his Ameri- can citizenship through a residence in Bavaria of more than two years, does not eo ipso re- acquire Bavarian citizenship but only after mak- ing due application as in the case of any other alien and at the pleasure of the King of B&varia. Position of Hesse. 9. The treaty with the Grand Duchy of Hesse concluded August i, 1868, is the same in its provisions as that with the North German Con- federation as is also that concluded July 27, 1868, with Wiirttemberg. These various treaties have, of course, been in- corporated into the law governing the relations between the German Empire and the United States, and have the same force, since the found- ing of the German Empire as they had before, except that they are not held to apply to Alsace- Lorraine. That no possible doubt of their meaning may exist it may be well to explain this expression 9 Germany's claims upon [io occurring in all the treaties : "If a German natur- alized in America renews his residence in North Germany (or Bavaria, Baden or Wiirttemberg) without the intent to return to America he shall be held to have renounced his naturalization in the United States." It has been held by the different German States that a residence of more than two years without intent to return to America is sufficient to bring about this loss of American citizenship. Obvious exceptions to this rule are the cases of American students at German Universities and business men required temporarily by the demands of their business to remain in Germany longer than the prescribed time. Exceptions are usually easy of recognition. It deserves to be mentioned also that the phrase "shall have acquired naturaliza- tion and have resided uninterruptedly five years in the United States" has been officially inter- preted to mean that the five years' residence re- quired shall not necessarily be reckoned after the receipt of the naturalization papers but from the beginning of the entire period of residence in America, and furthermore that "uninterrupted residence" does not preclude business or pleasure trips of short duration beyond the boundaries of the United States, but refers to continued legal residence. It must also be remarked that each of Il] GERMAN-AMERICANS IN GERMANY. 10 the treaties specially provides that any emigrant guilty of a crime in the mother country before acquirement of citizenship in the United States shall not be preserved from punishment for that crime, should he return to the mother country, by virtue of his new citizenship. Germany's Interpretation of Offenses. ID. This provision leads to the consideration of what Germany regards as offenses against her military law ; offenses committed prior to acquir- ing other citizenship and therefore punishable and which may be punished by her either through an opportunity, given by the ill-advised return of the guilty person to Germany or through the success- ful demand for his extradition. Since offenses against the military law of Germany are of most frequent occurrence and since such offenses very often take place through ignorance or inadver- tence on the part of the emigrant, it is well to con- sider the German regulations on this subject separately. II . Germany's claims upon [12 CHAPTER III. GERMAN MILITARY REQUIREMENTS. WHEN . A GERMAN MAY EMIGRATE WITHOUT BECOMING LIABLE TO THE GERMAN LAW AND HAV- ING EMIGRATED WITH LIABILITY WHEN HE MAY RETURN WITH- OUT BEING SUBJECT TO PUNISHMENT. Emigration without liability, 11. Other classes of emigration, 12. Authority on non-liable emigration, 13. Cases in Hesse, 14. Completion of military service, 15. Minor children, 16. Emigration Without Liability. II. There are two instances where a German subject may emigrate to the United States and be free from all fear of disturbance upon his return because of unfulfilled military duty. The first is when he emigrates to the United States before reaching the age of seventeen years and becomes a citizen there. This rule holds good whether he has accompanied parents abroad and the latter becoming naturalized, he also thereby acquires 13] GERMAN-AMERICANS IN GERMANY. II citizenship or whether he goes alone or with a guardian and acquires citizenship by naturaliza- tion on his own account. At the age of seventeen all German men become liable to military duty. At this age they are entered on the rolls as so liable and may not emigrate without a special per- mission from the military authorities. It fol- lows that the youth under seventeen who emi- grates to America and acquires citizenship has nothing to fear upon a return to Germany and cannot justly be called to account by the German authorities for neglect of military duty. On the other hand the youth of seventeen or over who has emigrated with permission is not liable unless, before he becomes a citizen, the German Govern- ment should publish a summons to all Germans abroad, and who are abroad with or without per- mission, to return for service under the colors. In this case should he not have become a citizen and should he disregard the summons he is liable to the German law upon his return to Germany. Should he have emigrated, however, with or with- out permission and should he have acquired citi- zenship before such a summons is published, then, upon his return to Germany having disregarded the order he is not liable to any punishment. The second instance is where the emigrant has not only completed the period of his military ser- 12 Germany's claims upon [14 vice But has also reached the age of 31, over which age no German, having completed the service re- quired of him can be drawn into service in time of peace. Other Classes of Emigration. 12. It very frequently occurs, however, that Germans emigrate who do not belong to either of the above classes. Often they have been noti- fied that they will be drawn into service on a cer- tain date and before that time arrives, they emi- grate. More often still, having served as one year volunteers (Einjahrig Freiwilligen) or as common soldiers (Gemeinen) for a full term of enlistment, formerly two now three years, and having been transferred to the reserves or to the National Guard (Landwehr) they emigrate with- out permission and acquire citizenship in the United States. It is therefore interesting to note the instances in which the German law expressly declares that a German having acquired citizen- ship in the United States is not liable for neglect of military duty on returning to Germany, reserving for a separate chapter those instances in which the law clearly points out liability. It should be mentioned in this connection that in accordance with the treaty with the North German Confederation and other German States 15] GERM AN- AMERICANS IN GERMANY. 12 Germany has a perfect right to punish German- Americans guilty of infraction of German military law before their acquirement of citizenship and to decide in what those infractions consist. How- ever, military laws or regulations promulgated after the emigration of the German and in force during the acquirement of citizenship cannot be made retroactive in their character. The clause of the treaty concluded February 22, 1868, says: "A naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an action punishable by the laws of his original country and committed before his emigration." The provision covers both civil and military offenses, and distinctly in- dicates that the emigrant shall not be held liable for an offense, technically committed after emi- gration. It therefore follows that having emi- grated without permission, even though being in the Reserves or National Guard and in process of acquiring or having already acquired citizenship should a summons be published for all Germans to return to their native land, the German-American who disregards it by virtue of having become an American citizen or who becomes one later can- not justly be held accountsble upon returning to Germany on a visit. In practice, however, he is often proceeded against. 15 Germany's claims upon [i6 Should he be a member of the Reserves or Na- tional Guard and disregard the summons while not yet a citizen then he is guilty of desertion, though not guilty through the simple fact of emi- grating without permission when not serving, and on returning to Germany may be punished for desertion unless he has subsequently become a citi- zen. A member of the Reserves abroad in a good position, receiving a command to return and serve, can avoid obeying by getting a certificate from the German Consul that he has a good posi- tion, and therefore cannot obey without suffering material damage (Reichsmilitargesetz-buch p. 963). This provision is of interest to many Ger- mans who emigrated to the United States previous to the War of 1870-1. Baden and Bavaria have, however, in their treaty with the United States distinct provisions as to the liability attendant upon infractions of the military law. These will be considered in the next chapter. Authority on Non-Liable Emigration. 13. To return therefore to the instances in which Germany distinctly recognizes non-liabil- ity: In Vol. I, Page 43, "Proceedings of the North German Bund" appears the following: "es kann .... ein Deutscher welcher sich 17] GERMAN-AMERICANS IN GER,/IANY. I4 5 Jahre in Amerika aufgehalten und dort das Biirgerrecht erworben hat, im Falle seiner Riick- kehr nach Deutschland wegen unerlaubter Aus- wanderung (Par. 140 des R. St. G. B.) weder zur Untersuchung noch zur Strafe herangezogen werden," or in English: "No German who has remained five years in America and has secured citizenship there, can in case of his return to Ger- many be subjected to examination or fine because of unallowed emigration (Par. 140 German Penal Code). It follows, therefore, that when one has not fulfilled his military duty but is not guilty of desertion (desertion being defined in the next chapter) he is by German law not liable on his return to Germany after having acquired United States citizenship. Cases in Hesse. 14. In the Grand Duchy of Hesse, in particular, numerous cases occurred before 1886, of prosecu- tions of German-Americans on their return to Germany, because of neglect of their military obligations. In response to protests, the State Ministry, in order that a rule of action might be established for the Duchy promulgated on Octo- ber, 1888, the following decision and interpreta- tion of the treaty between the United States and the Grand Duchy: 14 Germany's claims upon [i8 " . . . . das nicht allein die Strafverfol- gung Amerikanischer Staatsangehoriger wegen der durch die Auswanderung oder nach der Aus- wanderung begangenen Verletzung der Wehr- pflicht sondern auch die Vollstreckung eines des- iialb erlassenen Urteils ausgeschlossen erscheint. Dabei ist es gleichgiiltig ob der Verurteilte zur Zeit des Urteilserlasses bereits naturalisirter Staatsangehoriger war oder es nachtraglich geworden ist." Or in English : "Not only the prosecution of an American citi- zen on account of infraction of his military obli- gations through emigration or after emigration, but the fulfillment of any judgment which may have been recorded against him appears to be ex- cluded. It is also indifferent whether at the time of the judgment he was a citizen of the United States or became one afterwards." In respect to this last clause Hesse goes further than the other German States, especially Bavaria and Baden, which expressly declare that unless the German-American is actually a citizen he can- not be considered to come within the meaning and protection of the treaty. The point is one of im- portance deserving to be especially noted in the treatment of the cases of German-American citi- zens formerly living in Hesse. 19] GERMAN-AMERICANS IN GERMANY. 1 5 Completion of Military Service. 15. Those persons, also, who have completed their time of military service and have reached the age of 31 years may return to Germany after becoming citizens without fear of being held liable for non-fulfillment of any additional military duty that may have been required during their absence, except in case of war. Even in case of war and of a general summons to all Germans in the United States to return to their military duty, those Ger- mans who are 45 years of age and who afterwards become citizens may not be held liable by the Ger- man law, since no German is liable for military duty of any kind except between the ages of 17 and 45. Minor Children. 16. It is also distinctly recognized that German military law has no bearing upon the minor chil- dren of German parents, who are still in their minority when the parents become American citi- zens, nor upon the children born in Germany of German-American parents, when the latter have not resided in their native State of Germany more than two years and intend to return to America or having resided there more than two years — the length of time of residence permitted before citizenship shall be considered to have elapsed — i6 Germany's claims upon [20 can prove their intention to return to America to reside. In this connection, it should be remem- bered that this restriction of two years' residence refers only to residence in the particular State of which a German-American is a native. For example, a Bavarian who has become an American citizen may reside in Prussia as long as he likes without being considered to have given up his American citizenship, while were he from Prus- sia, he could only return to Prussia under the two years' residence limitation. Having considered the treaty provisions and having seen that Germany as a whole only per- mits return of German-Americans to Germany without molestation either when one emigrated when he was too young to be liable for military service or when he was too old, or when he had fulfilled his military obligations, or when his in- fraction of military law by his emigration .was not of a sufficiently grave character to be considered desertion, let us, then, consider when Germany does regard a returning German-American as liable. Since in all the treaties desertion is a crime specially excepted from non-liability, it will be well to consider exactly the definition of deser- tion, unpermitted emigration and liability in gem eral. 21 ] GERMAN-AMERICANS IN GERMANY. I7 CHAPTER IV. WHEN A GERMAN-AMERICAN IS STILL LIABLE TO THE GERMAN MILITARY LAW DESERTION AND ITS OFFICIAL DEFINITION WHEN MILITARY OFFENSES ARE OUTLAWED. Desertion, 17. Overstaying leave, 18. Disobedience of notice to serve, 19. Excuse for disregarding notice, 20. Desertion not forgotten, 21. Loss of American citizenship, 22. Two years' residence in Germany, 23. Serving with the colors, 24. Outlawing of offenses, 25. Desertion. 17. Above and beyond all other offenses in the eyes of German military law, saving, of course, treason, is desertion; treason itself being the gravest form of desertion. There is no treaty, no assumption of new citizenship that can avail to protect a former German subject from its con- sequences should he come into the power of the German authorities and be proceeded against be- cause of this crime. In time of war, though in no case in time of peace, he may be punished 17 Germany's claims upon [22 for treason with death. The only escape for a deserter is avoidance of Germany, or should he, while the stigma of desertion still hangs over him, return to Germany, he may only do so with safety should his offense be outlawed or should he be pardoned by the head of the State. Stringent as the penalties for desertion are, it is necessary that the offense be sharply defined. Says the Military Penal Code, section 69 : "Desertion (Fahnenflucht) ist die unerlaubte Entfernung in der Absicht sich seiner gesetzlichen oder iiber- nommenen Verpflichtung zum Dienst dauernd zu entziehen." Or in English: "Desertion (flight from the colors) is the unpermitted absenting of oneself with the intention to escape permanently, one's legal or accepted obligation to (military) service." That there may be no doubt as to what "unerlaubte Entfernung" (unpermitted absence) may mean, sections 64, 65 and 68 of the Militar Straf Gesetzbuch (Military Penal Code) define it as follows : "Unerlaubte Entfernung is, besides voluntary absenting of oneself from the troops or from his military post or overstaying of leave, also present when a person of the 'Beurlaubten- stand' (that is to say a person not in active mili- tary service but who is yet unfreed from his mili- tary obligations) does not obey, within three days after the time fixed, after a declaration of war, 23] GERMAN-AMERICANS IN GERMANY. 18 or an ordered mobilization, a call to service or a published command to place himself at the dis- position of the military authorities." Overstaying Leave. 18. The articles of war, however, recognize the fact that a soldier may overstay his leave or may voluntarily absent himself from the troops or his military post without being guilty of desertion. It is when the intention to "leave the colors" per- manently is present that desertion exists. Since, therefore, the treaties with the North German Union, Wiirttemberg, Bavaria, Baden and Hesse especially reserve the right to punish desertion, even should the deserter become a citizen of the United States, a German-American should not re- turn to Germany should he know himself guilty of: (a) Leaving the colors without permission in time of war. (b) Overstaying his leave and going to Amer- ica without the offense being condoned or pardoned. (c) Emigration to America without permission after he has received an order to present him- self for service, whether in time of peace or war. (d) Emigration to America, unless he is above 19 Germany's claims upon [24 or below the age for military duty ( 17 to 45), after declaration of war has been made, or general mobilization is under way or a public command has been published for all persons liable to service to present themselves, even should he have received no personal com- mand. Disobedience of Notice to Serve. 19. Should the emigrant find himself already in America when the notice indicated in clauses c and d is given and should he not yet have be- come and does not become a citizen then if he dis- obeys it he is just as liable upon returning to Ger- many for desertion as if the offense were commit- ted while he was yet in Germany, though his simple emigration without his government's con- sent, if he were not serving with the colors, can- not be considered desertion. Upon this point, the celebrated German jurist. Dr. Cahn, says in his digest : "Das Reichsgesetz ueber die Erwerbung und den Verlust der Reichs und Staatsangehorigkeit." (Imperial law con- cerning the acquirement and loss of Imperial and State citizenship, pp. 178-179.) : "Die blosse For- treise eines beurlaubten nicht bei der Fahne stehenden Reservisten oder Landwehrmanns ohne Auswanderungsconsens bez. ohne vorherige 2S] GERMAN-AMERICANS IN GERMANY. I9 Anzeige ist keine Desertion sondern eine nur mit geringer Strafe bedrohtes Disciplinarvergehen Erst wenn an den Reservisten oder Landwehr- mann eine Gestellungsordre durch Zustellung an ihn selbst oder in seinem letzten Wohnort oder durch offentliche Bekanntmachung ergangen ist und er diesem Befehle nicht folge leistet macht er sich Desertion schuldig und wenn dies innerhalb der ersten fiinf Jahre seines Auffenthalts in Amerika geschieht, so schutzt ihn der Vertrag nicht, indem die ohne Consens erfolg^e Auswan- derung erst nach fiinfjahrigem Aufenthalt und Naturalization zu einer rechtlich perfecten Aus- wanderung wird." Or in English: "The sim- ple going away of a member of the Reserves or National Guards, not serving with the colors, without consent to his emigration or without previous notice on his part is not desertion but only an infraction of discipline liable to a mild penalty. Only when a member of the Reserves or the National Guards does not observe an order to report for service, served on him personally or sent to his last place of residence, or when a pub- lic command is made and he does not obey it, is he guilty of desertion [this public command being a publication directed to him in the official paper of his supposed last residence place in Germany] and when this occurs within the first five years of 20 Germany's claims upon [26 his residence in North America then the treaty- does not protect him, since his emigration without consent only becomes a legally perfect emigration after five years residence and naturalization." Excuse for Disregarding Notice. 20. Should, however, a German of military age have gone to America with or without consent or should he have emigrated before the military age and become of military age before he be- comes a citizen and then receive such an order to report for duty, there is a way in which he may avoid obedience to the order and at the same time avoid any possible disagreeable consequences of such disobedience upon returning later to Ger- many as a citizen or non-citizen, viz : Upon re- ceiving such order should he before the nearest German Consular officer show good reasons, such as sickness, the loss of a good position, business losses, etc., why he cannot well obey, he is entitled to the Consular officer's certificate to that effect which he may forward to his particular military bureau as a sufficient excuse for non-observance of the order. Desertion not Forgotten. 21. It will be seen that the German law never forgets desertion. There are other infractions of 27] GERMAN-AMERICANS IN GERMANY. 22 less consequence in which its memory is also good. For example: A German who having gone to America acquires citizenship there and re- turning to Germany remains in his native State more than two years (without evident intention to return) in case he has not completed his 31st year, may be drawn into military service. If he has been drawn as a recruit and afterwards though not having yet served with the colors, goes to America he may on his return as a citizen, be made to serve, or undergo such punishment as may be fixed. Loss of American Citizenship. 22. The son of a German-American who through continued residence in Germany has lost his American citizenship is liable to German mili- tary service in case he himself has not acquired American citizenship and this is the case also even if he is born in America, should he not have acquired citizenship there. Two Years' Kesidence in Germany. 23. It is also the case that German-Americans having lived two years in Germany and having returned to the United States cannot, eo ipso, de- mand the right of a renewed residence of two years in Germany. On the contrary, Germany 24 Germany's claims upon [28 has the right upon their return for a lengthy resi- dence, to order them at any time to leave the country or to consider them after two years' resi- dence in their native State as having lost their American citizenship, as being in fact, "men with- out a country" though amenable to the laws of Germany's military service. Though permission to emigrate may be given to those who are liable to military service when they secure from their district recruiting commission (Kreis Ersatz Commission) a certificate that the emigration is not undertaken with a view to escaping military service, still, during the time the emigrant is in the United States, should he receive orders to re- port for duty and disobey them he is liable to the penalty of the German law at any time that he may return to Germany before he is a citizen. After he becomes a citizen he may return in safety, having with him the original permission to emi- grate, even though he has disobeyed the order. Serving With the Colors. 24. In fine, it may be said that a German hav- ing become an American citizen with an otherwise clear record is liable on his return to his native land for offenses against the military law, and in the first degree for that of desertion, after he has begun to serve with the colors. From punish- 29] GERMAN-AMERICANS IN GERMANY. 2$ ment for offenses committed by him against the military law before he began to serve with the colors he is protected by his American citizenship, this right being granted by the treaties already mentioned, unless he shall have been notified, be- fore his emigration, to present himself for ser- vice. Outlawing of Offenses. 25. Military offenses, including even desertion, may be outlawed, and in what manner, we shall see in the next chapter. In general, it may be said if no legal intervention is made in the case by the authorities before the lapsing of a term of years proportionate to the offense, the offense is outlawed, but since the German military authori- ties are as little neglectful of their duty in this as in other respects, it would be in the highest de- gree unsafe for a German-American, guilty of desertion and counting upon his offense being outlawed to return to Germany expecting immun' ity from punishment. 26 Germany's claims upon [30 CHAPTER. V. PUNISHMENT THAT MAY BE VISITED UPON GER- MAN-AMERICANS FOR INFRACTION OF GERMAN MILITARY LAW. The German subject to two courts, 26. What constitute offenses, 27. Penalties provided, 28. Annulment of judgment, 29. The military courts, 30. Deserter's avoidance of Germany, 31. Offenses seldom outlawed, 32. The German Subject to Two Courts. 26. The German is subject in his military ca- pacity to two courts accordingly as he is in active service or in the Beurlaubtenstand. The latter condition is when he is a member of the Reserves or of the Landwehr or has a furlough of indefi- nite length. In active service he is subject to the military court, while in the Beurlaubtenstand or as a person liable to military duty but not having yet served, he is liable to the civil courts, for of- fenses against the military law. What Constitute Offenses. 27. As the various treaties provide that no emi- 3l] GERMAN-AMERICANS IN GERMANY. 28 grant shall be free from the consequences of an offense committed previous to his emigration, with exceptions already dwelt upon, unless he is pardoned or the offense is outlawed, it is of im- portance to consider what constitute offenses against the military law for which the returning German-American may be held liable and also when those offenses are in fact outlawed. To this end the cases coming under the jurisdiction of the civil law will be first considered, since cases of this kind are most frequently connected with returning German-Americans. Penalties Provided. 28. Section 140, of the Civil Penal Code says : A Wehrpflichtinger, (that is a German sound of mind and body who is between 17 and 45 years of age) who with the intention to escape service in the standing army or navy leaves the empire with- out permission or having reached the age of mili- tary liability (i. e. 20) remains without the em- pire, shall receive a money fine from 150 marks (about $37) to 3000 marks (about $750) or imprisonment from one month to one year. This paragraph provides for punishment for un- allowed emigration and since it is an offense com- mitted through the emigration itself and not be- fore emigration (for which latter offenses the 29 Germany's claims upon [32 treaty does not provide immunity) it cannot justly be alleged against a German who has gone to America and there acquires citizenship. Annulment of Judgment. 29. It is, however, maintained by Germany that should an action against a German-American have taken place and judgment have been ren- dered, its execution is not to be considered as an- nulled by the treaty but annulment must be sought for through favor of the head of the State. This provision is in so far important that property of the accused may be levied upon to recover any fine placed upon him. An exception to this rule is Baden, which reserving definitely in her treaty the right to punish former Badeners who have gone to America; i, after being drawn as re- cruits ; 2, when in service ; 3, when as indefinitely furloughed or members of the Reserves or Land- wehr they refuse to return when ordered to do so, also declares she will not hold them liable for any other form of military offense and will there- fore annul at once any execution that may be lev- ied upon their property as soon as American citi- zenship is proven (Treaty United States and Grand Duchy of Baden, July 19, 1868.) Should, however, judgment under this section have been rende^-ed, then it is outlawed: if only a money 33] GERMAN-AMERICANS IN GERMANY. 29 fine shall have been imposed, in three years; if imprisonment, then in five years. The provisions of sections 2 and 3 of this para- graph are also inapplicable to Germans who be- come American citizens when the offense only actually takes place through the emigration but they deserve to be quoted for the reason that they provide different fines and penalties which may be adjudged against emigrants without their knowledge, though contrary to treaty provisions. Section 2 says : An officer or a physician of offi- cers' rank of the Beurlaubtenstand who emigrates without permission may be punishad with a money fine up to 3000 marks or $750 or with arrest or imprisonment up to six months. Section 3 is as follows : Every Wehrpflichtinger who after pub- he notice or a definite order from the Emperor, during the time of war or threatened war, emi- grates in contradiction to the same, may be pun- ished with imprisonment up to two years and in addition by a money fine up to 3000 marks. These offenses may be outlawed as under the first sec- tion. It has happened, however, that returning German-Americans have been proceeded against under these sections. There is, according to the treaty provisions, no authority for that and any German-American has a right to protest against even examination on a complaint founded on 3 30 Germany's claims upon [34 these grounds; unless by long residence in Ger- many he should have lost his American citizen- ship. But cases are not lacking also where re- turning German-Americans have found them- selves legally liable to punishment by German courts. The Military Courts. 30. Having examined the jurisdiction of the civil courts it is novir necessary to consider the military courts. Until October, 1872, the differ- ent independent States of what is now the Em- pire of Germany maintained their own troops and in consequence had their own definitions of infrac- tions of military law and severally indicated what punishments should be the consequence of such infractions. Upon the date mentioned, in conse- quence of the union of the various States as the German Empire the entire military strength of the States forming the empire was placed under a uniform military penal code. It will not be neces- sary to consider the various infractions of mili- tary law which take place while the soldier is serving with the colors for the reason that either he has already suffered punishment or has es- caped punishment by flight. In the latter case he is guilty of either desertion or unlawful ab- sence from the colors and in that event the pun- 35] GERMAN-AMERICANS IN GERMANY. 30 ishment for the offense, should he thereafter come into the hands of the miUtary authorities will be combined with the punishment which may be vis- ited upon him for any offense committed prior to said desertion or unlawful absence. As to the punishment following upon unlawful absence the Military Penal Code (Mihtar Straf Gesetz Buch, chapter i, section 64,) says: Whoever on his own account goes away from his company or his muitary position or intentionally remains away or exceeds furlough that may have been granted him, will, on the ground of unlawful absence, be punished with imprisonment for six months. Should the absence last longer than three days, then he will be punished with imprisonment up to two years and should such absence occur while the troops are in the field he may be punished with imprisoimient up to five years. Sec. 68 declares: Similar punishment (impris- onment up to five years) affects a person of the Beurlaubtenstand (members of the Reserves and National Guard) who do not announce them- selves as ready for service within three days after a published notice of preparatioil for war, or mobilization or a published demand that he take upon himself his definite duties. As to desertion, says sec. 69: "Whoever is guilty of unlawful absence with the intention to 30 Germany's claims upon [36 escape permanently his legal or accepted obliga- tion to military service is to be punished for de- sertion." In practice the deserter is usually pun- ished with imprisonment for from six months to two years. In addition to this there is the money fine (in contumacium) , usually levied against a deserter as soon as he disappears. The payment of this fine in no wise releases the deserter from further prosecution and punishment. This snould be clearly borne in mind since cases have occurred where German-Americans, or relatives for them, having paid such a fine have returned to Ger- many thinking themselves free from any further liability to the law, but have been proceeded against and punished by imprisonment. The of- fense is further treated of in the following sec- tions : Section 70. Desertion is to be punished with imprisonment of from six months to two years and the first repetition of it with imprisonment from one to five years. Section 71 : Desertion in the field is to be pun- ished with imprisonment from five to ten years. Section 73 : Desertion from a post before the enemy or from a besieged fortress is to be pun- ished with death and the same punishment is to be visited upon a deserter, if caught, who goes over to the enemy. 37] GERMAN-AMERICANS IN GERMANY. 3 1 Section 76: The outlawing of the offense of desertion begins with the day when the person has fulfilled his legal or accepted obligations to military service, provided legal action has not al- ready been taken against him. (vid. Solmer "Strafrecht und Straf process fiir Heer und Marine," pp. 199 and 316.) Deserter's Avoidance of Germany. 31. From these various provisions it will be seen that the German-American citizen who knows himself to have been guilty of desertion or unlawful absence from the colors will do well to avoid visiting Germany. Not only does the treaty between the various German States and the United States distinctly provide that the ac- quirement of American citizenship shall be no protection against the crime of desertion in case the deserter comes within the jurisdiction of the German authorities, but it should be understood also that the German authorities have very long memories. The chances of a deserter who may return to Germany twenty years after the offense being proceeded against are greater than they are that he will be overlooked. The "unlawful ab- sence" of a member of the Reserves, arising through the fact that residing in America and be- fore he has become a citizen an order for mobiJi- 31 Germany's claims upon [38 zation has gone forth to which he has paid no at- tention, might be punished even should the man concerned afterwards become a citizen and then return to Germany. But while this right except as modified by treaty, remains to Germany, in practice it is but seldom followed, the proof thai the man concerned is really an American citizen and the request of the American ambassador usually being sufficient to secure release. The treaties provide that no German who leaves Germany and becomes an American citizen shall be punished for an offense arising either through the fact of his emigration as a separate act or after his emigration, except for desertion and the ex- tremest form of unlawful absence. For this reason the German who leaves Germany without per- mission though he be a member of the Reserves or National Guard, but is not serving with the colors, may not be punished on his return, though it is possible he may be proceeded against until the ambassador makes representations in his be- half. Against desertion, however, and unlawful absence arising through his leaving while serv- ing with the colors even though in time of peace he has no defense and can demand no protection. "This fact cannot be impressed too strongly upon German-Americans returning to their native land since experience has proven that many German- 39] GERMAN-AMERICANS IN GERMANY. 32 Americans guilty of the offenses mentioned have returned to Germany confident that their Ameri- can citizenship protected them from all interfer- ence, and have been vigorously awakened from their complacency. Offenses Seldom Outlawed. 32. Regarding the outlawing of offenses, the offender has but little to hope. Desertion, it may be said, in practice, is never outlawed. There is to be sure the condition already mentioned that the offense may be outlawed if the deserter re- turns to his duties and fulfills them, if, in the meanwhile, no procedure has been taken against him. This procedure as a matter of fact, always takes place, and as soon as it does the period of outlawing must begin over again, nor does the time of outlawing begin until the time of service expires which the soldier would have to serve had he not deserted, that is to say twelve years in all, up to and including his time in the National Guard. Officially, however, there is provision for the out- lawing of desertion. The outlawing of a prose- cution for desertion presents also an exception to the general rule in that it is officially declared to begin on the day on which a deserter would have finished his term of military service if he had not deserted. It is necessary to distinguish between 32 GERMANr's CLAIMS UPON [40 the outlawing of prosecutions for offenses and the outlawing of a judgment legally rendered against the offender. Offenses against the mili- tary as well as the civil law consist in crimes, mis- demeanors and minor infractions of the law. These may all be outlawed and in order to inter- rupt the process of outlawing there must be some action on the part of a judge competent to inter- fere, the simple action of a prosecuting attorney or other officer of the law not being suiificient. First: as to the outlawing of prosecutions for crimes. The divisions are as follows : (a) If the crime is one punishable with death or life imprisonment and no action is taken against the offender in the meanwhile it is outlawed in twenty years. (b) If the offense is punishable with more than ten years, but less than twenty years, impris- onment it is outlawed in fifteen years. (c) If the offense is punishable with impris- onment for less than ten years it is outlawed in ten years. The outlawing of prosecutions for misdemean- ors is as follows : (a) When the misdemeanor is punishable with imprisonment for more than three years, it is outlawed in five years. •(b) Iji all other cases it js outlawed in three 41 ] GERMAN-AMERICANS IN GERMANY. 32 years. The outlawing of prosecutions for minor offenses takes place in three months. Second: As to the outlawing of judgments rendered : (a) When the judgment is death or confine- ment in a penitentiary or fortress for life the judgment is outlawed in thirty years. (b) When the judgment is confinement in the penitentiary or in a fortress for more than ten years but less than for life it is outlawed in twenty years. (c) When the judgment is confinement in a penitentiary up to ten years or in a fortress of from five to ten years or simple imprison- ment for more than five years it is outlawed in fifteen years. (d) When the judgment is simple imprison- ment or confinement in a fortress for from two to five years or a money fine of more than 6000 marks it is outlawed in ten years. (e) When the judgment is simply imprison- ment or confinement in a fortress up to two years or a money fine of from 150 marks to 6000 marks, it is outlawed in five years. (f) When the judgment is simple arrest or a money fine up to 150 marks it is outlawed in two years. The outlawing begins on the day when the 32 Germany's claims upon [42 judgment became a perfected legal act. The outlawing of a prosecution, however, begins on the day when the offense began to be committed in case it was one extending over a length of time. It will be seen therefore that while the outlawing of offenses, civil and mili- tary, may occur, it would be highly injudicious to reckon upon that fact. In any case the offender who thinks his offense has become outlawed would do well to inform himself whether the competent court of the place where the offense occurred had taken any action in the matter. This information may be secured without trouble through any in- quiry bureau such as are attached to the promi- nent commercial agencies. When the conditions above quoted from the German civil code are ful- filled the inquirer may feel himself safe but, un- less he has received a pardon, only then. 43] GERMAN-AMERICANS IN GERMANY. 33 CHAPTER VI. POSSIBLE CASES OF RETURNING GERMAN-AMERI- CANS AND THEIR LIABILITY OR NON-LIABILITY. Twelve possible cases, 33. 1st — A. Emigration of a minor who returns without securing citizenship. 2nd — B. Minor born in the United States of German parents, who goes to Germany to live. 3rd — C. Born in Germany and returns from America an adult, but is not a citizen, through fail- ure of father to complete citizenship. 4th — D. Born in Germany, taken to United States, but brought back a minor after father had ac- quired citizenship, 5th — E. Born in the United States and brought to Germany as a minor after father's death, though after latter had become a citizen. 6th — F. Born in United States and goes to Germany after father's death, though an adult before father acquired citizenship. 7th — G. Emigrates as a minor to America after notice to serve has been given him, and acquires citizenship. 8th — ^H. Emigrates, though a member of the Reserves, without permission, and becomes a citizen. 9th — I. Though a member of the Reserves, emigrates 33 Germany's claims upon [44 without permission, and after receiving notice to present himself for service. loth— J. Though a member of the Reserves, emigrates to America, and after his arrival, but be- fore securing citizenship, is notified to serve. nth— K. A native of Alsace-Lorraine emigrates with- out permission, and acquires citizenship. I2th — L. Born in Germany, acquires citizenship in United States, and loses it by long resi- dence in Germany. Twelve Possible Cases. 33. Having considered the various laws and treaty provisions which bear upon the HabiHty of born Germans who may return to Germany as American citizens it may be instructive to bring forward supposititious cases of returning Ger- man and see in what manner existing laws might or might not affect thenj. First case: A is a German 18 years of age and is consequently liable to military service though not yet of the age (20) when he will be drawn into service. Without securing permission from the authorities to emigrate he accompanies his father, who has performed his military service, to America. The father becomes naturalized and when he secures his final papers A is naturally 23 years of age. On his own account he does not ap- ply for naturalization papers. In the meanwhilg 45] GERMAN-AMERICANS IN GERMANY. 33 a letter has been written to him at his last resid- ing place in Germany requiring him to present himself for military service. Returning to Ger- many after a lapse of years he is arrested by the military authorities and compelled to serve his full time as a soldier. Against this judgment and procedure he has no right to protest, since even though his father has become an American citizen he is still a German subject. Had A secured naturalization as his father did he could not have been so punished since he would have been protected, as an American citi- zen, by the treaty provisions between Germany and the United States covering such cases. Second case : B, is also the son of German pa- rents, but was born in America. His father, how- ever, has never taken the trouble to become natur- alized and B goes to Germany to live before he reaches the age of 21 years. In this case his name does not appear in the German military records but nevertheless it is liable to be entered in such records and he is liable to be called into service in the same manner as every other German subject ; provided, however, that he was not born after his father had been ten years out of Germany. This provision finds its ground in the fact that a Ger- man absent from his native land for ten years and 33 Germany's claims upon [46 in that time not having announced to a German Consul his intention of retaining his German citi- zenship is considered eo ipso to have lost it, even though in the meanwhile he may no I: have ac- quired citizenship of any other country. In this case the son would not be subject to Germany, un- less returning to Germany he voluntarily assumed German citizenship. Such assumption would b£ presumed if he should on returning, remain for more than two years in a dependent position as a member of a German family. It could not be as- sumed were he in Germany for the purpose of study or for business reasons. Under the 14th amendment to the Constitution of the United States, B would be considered by the United States for purposes of protection, a native citizen until he should assume other citizenship of his own accord. Third case: C is in a rather different position. Born in Germany he is the son of a German father, who, having gone to the United States, ap- plied for and received his first papers but never received his final citizenship papers and is accord- ingly not a citizen of the United States, or it may have happened that the father died after the is- suance of the first papers and before he received his second and final papers. Should then the son C return to Germany under the age of 31 years, 47] GERMAN-AMERICANS IN GERMANY. 33 the age limit in time of peace, and should he not have secured citizenship on his own account in the United States, he is liable to military service exactly as any other German, and this notwith- standing the fact that he may even be unable to speak the German language. There is, however, one very important probable exception to this rule, and that is in the Grand Duchy of Hesse. In this German State, in accordance with a decision of the ministry on non-liability of date October xo, 1888, a former Hessen who has gone to the United States and secured neither his first nor his second citizenship papers at the time judgment is taken against him may not be prosecuted for unallowed emigration or for infraction of his military obligations arising through or after such emigration, should he subsequent to the judgment return to Germany as an American citizen. This decision of the ministry says expressly : "dabei ist es gleichgiiltig ob der Verurteilte zur Zeit des Urteilserlasses bereits naturalisirter Staatsange- horiger war, oder es erst nachtraglich geworden ist" (thereby it is entirely indifferent whether the adjudged was at the time of the judgment already a naturalized citizen or became so afterwards), Reichsanzeiger, October 24, 1888. It may perhaps be well to remark that all chil- dren of German parents born in America are by 33 Germany's claims upon [48 virtue of that fact considered in Germany as American citizens and should the father, having secured naturahzation, return to Germany with such children before they are of age they are still considered as American citizens and may not be drawn into military service. However, having reached the age of 21 years they may choose for themselves whether they will become Ger- man subjects and may then of course be drawn into service. It lies also within Germany's right to insist upon such children leaving the country either before or after their majority. This is distinctly set forth by Cahn (Page 182, section 25) of the German Foreign Office in his "Comments on the treaties between the United States and the North German Union, Bavaria and Wiirttemberg." International comity, how- ever, between two friendly nations is almost a binding principle of international law and there- fore the right mentioned is one which Germany would only exercise in case of absolute need. But once exercised, either with or without reason, Germany could not be called to account by the Government of the United States, without the violation of that firmest factor in all international law — a definite treaty provision. Fourth case : The case is decidedly different with D, however. He is the son of German pa- 49] GERMAN-AMERICANS IN GERMANY. 33 rents; was bom in Germany and was taken to the United States when but a child. His father became a naturalized citizen of the United States during D's minority and then returned to Ger- many with D, who, by virtue of his father's na- turalization, must also be considered a citizen. The father, however, buys a residence, or engages in business or gives other evidence of his inten- tion to remain in Germany. D in the meanwhile has been in Germany two years and has reached the age of twenty-one. In that event he may be looked upon as having renounced all allegiance to the United States and without further cere- mony may be drawn into military service. Nor would the right of refusal be with him. Neither would the United States have a right to insist upon his release on the ground that he is an American citizen. This definite provision is clearly set forth in Section ii of the Reichsmili- targesetzbuch of May 2, 1874. Of course the United States might with all propriety set forth the fact of D's citizenship and might request, not demand, his release from military service. It is probable, should the request be accompanied by a statement that D intended to return to the United States to make his home, that considera- tions of international comity would induce his release but Germany would be entirely within her 4 33 Germany's claims upon [50 right in, refusing it. It is hardly necessary to add that the same provision appHes to the father of a family who is a born German, but a naturalized American, and who returns to Germany to re- main, always provided that in neither case has the person concerned completed his thirty-first year. When that is the case, under the German law, he cannot be called into military service at all in time of peace. Fifth and Sixth cases: E's case and that of F present other features. They are the sons of a German father but born in the United States after the naturalization of the father. The father dies and the mother returns to Germany with the two sons. Now if both sons were minors at the time of the father's death, then, by virtue of the father's naturalization they are both recognized in Germany as American citizens and may not be drawn into military service since Germany, by treaty provision, has agreed to recognize the ap- plication of any existing American laws to their case. Should, however, F have attained his ma- jority before his father's naturalization and E afterwards, then, since the American law does not recognize F as a citizen unless he himself has become naturalized, he, F, may be drawn into ser- vice in Germany while E could not be, despite the fact under German law that were F not ex- 51 ] GERMAN-AMERICANS IN GERMANY. 33 eluded by the United States law from citizenship, he would be also, under German law, as free from service as his brother. Seventh case : With G there is another varia- tion. He is born in Germany the son of German parents, and being between 17 and 20 years of age is liable to military service. He is also with others of his age, notified by publication that on a certain day he must present himself for ser- vice. In the meanwhile, his father emigrates to America and takes G with him. There G acquires citzenship and at the age of 23 years returns to Germany for a visit, a legal citizen of the United States. He is at once arrested charged with "un- allowed emigration" and violation of his military obligations. Is he guilty or not? The question is easy enough to answer so far as the first alleged oiifense is concerned. Of that offense he is not guilty since the treaty provides that a born German who may emigrate to the United States and become a citizen there may not be punished for any infraction of the German law arising through the act of emigration. For the same reason G could not be held accountable after becoming an American citizen for ignoring an order to announce himself for service should the order have been issued after he had left Ger- many. If, however, in the meanwhile a fine has 35 Germany's claims upon [52 been entered up against him it cannot be consid- ered as being without effect by virtue of the treaty but may only be removed by a pardon from the government. The decision of the second question as to his guilt or innocence of the charge of violating mili- tary law by emigrating to America after he had received through publication or otherwise the notice to announce himself for service, is not so easy. Having not yet served with the colors he can not be considered a deserter, nor is it the practice of the German law to adjudge him di- rectly guilty of an infraction of the law by reason of his having not obeyed the publication. The practice, is, however, to arrest such men as dis- obey the publication and force them at once into service compelling them to serve a longer time than their fellows who had obeyed the publica- tion. Since, then, nO' direct condemnation of G's offense has taken place he may not, on his return as an American citizen to Germany, be punished for his offense. Should he, however, through any reason renounce his American citi- zenship and have not reached his 31st year, he may not only be drawn into military service but the punishment of his original offense in refus- ing to obey the publication may be visited upon him in the shape of a longer term of service. 53] GERMAN-AMERICANS IN GERMANY. 33 Eighth case: H's case is one which is direct- ly provided for by German law and is one that happens very frequently. He has served as a regular soldier and has been transferred to the Bjeurlaubtenstand, that is to say, has become either a member of the Reserves or of the Na- tional Guards. Though belonging to Germany's military establishment he is not serving for the time with the colors though liable to be called in at any time. Without asking permission he emi- grates to the United States and becomes a citizen there. He returns to Germany and is notified that he must pay a fine not exceeding $100, because of his infraction of the regulation which requires every member of the Beurlaubtenstand to obtain the consent of his military superiors before he emigrates. Though, through the inter- vention of the Embassy, he may be pardoned the fine, still the German Government has a right to fix it and insist upon its payment. This right remains to Germany in spite of the provision that only infractions of the law committed be- fore emigration and not through emigration can be punished. It is held that such a member of the Beurlaubtenstand has committed an infraction of the law in the moment when, without consent, he enters upon his journey to a port of departure since the actual fact of emigration only takes 33 Germany's claims upon [54 place when he has left his native land. As a rule the fines for this sort of infraction of the law do not exceed 150 marks or about $40, nor are they imposed in every instance since the law dis- tinctly says : "An offense of this kind is not to be considered as desertion but simply as an in- fraction of discipline to be punished with a small fine." Ninth case : With I the matter takes a more serious form. It may be mentioned also that the difficulty in which he finds himself is one which almost invariably lies at the bottom of all serious cases of complaint made against German-Ameri- cans who, returning to Germany, find themselves arrested or proceeded against by the military authorities. The undesirable position in which persons of this category find themselves is to be ascribed in almost every case to their ignorance of the limitations of their American citzenship in protecting them. It is of the utmost import- ance therefore to bear in mind the circumstances surrounding I's case, remembering also that even though at the request of the United States Gov- ernment prosecution has at times been dropped in such cases or punishment suspended, the Ger- man Government does not regard favor of this kind, shown in any particular case, as establishing a precedent but distinctly claims the right to 55] GERMAN-AMERICANS IN GERMANY. 33 I prosecute former German subjects guilty of the offense alleged even though they may have been American citizens for many years. This right is one which cannot be disputed since it is pro- vided for by treaty, that of Baden with the United States on the subject being especially clear. I is a member also of the Beurlaubtenstand. He intends emigrating to America but before he carries out the intention he receives a Gestellimgs_ order, that is to say, an order to present himself for service. This order may be either in form of a notice addressed to him personally to his last address or it may be in the form of a publi- cation in a newspaper. It may be remarked also that should the notice have been addressed to him at his last address while he was on the high seas the circumstances would not be altered in the least. It will be supposed, however, that I has received his oroer directly m hand. Instead of obeying it he carries out his original plan of emi- grating to America and becomes an American citizen there. He has, whether he is aware of it or not, made himself guilty of desertion. Returning to Germany after the lapse of many years I is proceeded against by the civil law, under complaint of the military authorities, and is visited with a punishment of fine and imprison- ment; he may also be condemned, if he has not 33 GERMANY'S CLAIMS UPON [56 completed his thirty-first year, to serve in the army for such length of time as he still had to serve at the time of his emigration, in the case of a member of the Reserves, perhaps eight weeks. Against this judgment the United States has no right founded upon international law to appeal on account of I's having become an American citizen. It is not impossible, however, that an appeal through the Embassy in his behalf would be of avail on the score of international cour- tesy. Tenth case : The case of J also a member of the Beurlaubtenstand is similar to that of I with the exception that J has already reached America and has declared his intention to become an American citizen when his order to announce himself for service is mailed to him to his last address in Germany or is served by publication in an official paper in Germany. The fact that J had declared his intention to become a citizen, however, does not aid him since the treaties ap- ply only when complete citizenship has been se- cured. He pays no attention to the order, not even making a declaration before a German Con- sul that he is unable to obey it. J might suppose that even should he disregard this order he would have nothing to fear on his return to Germany since the treaty provides that only offenses com- 57] GERMAN-AMERICANS IN GERMANY. 33 mitted prior to emigration may be reckoned against the emigrant. As stated, however, he does not come within the treaty provision, but may claim its protection when he acquires com- plete citizenship. Even then he is liable to the punishment for unallowed emigration. The fact is, that offenses against the military law of this character, that is to say desertion, for such it is considered, are excepted from the pro- tection accorded by the treaty. 'The definite pro- vision of the treaty with Baden on the subject which may be taken as the interpretation also of the other German States is as follows : An American citizen formerly a Badener may be pro- ceeded against under the law of Baden : "When he emigrates without permission while indefinite- ly excused; or while a member of the Reserves or of the National Guard, after he has already received an order to announce himself for ser- vice or after a published command to enter into service has been made; or after war has broken out." This is certainly plain enough but that there may be no possible room for doubt in the mat- ter ; that persons knowing themselves to be guilty of the offense indicated may clearly understand the attitude of the German Government toward them in spite of the fact of their American citi- 33 Germany's claims upon [58 zenship, it may be well to quote on the subject the words of a well known German writer on in- ternational law and commentator on treaties, Dr. William Cahn, of the German Foreign Office, in his standard work, "The Imperial Law Regard- ing the Attainment and Loss of Imperial and State Citizenship." On pages 178 and 179 he says regarding the treaty provision spoken of : " . . . . wenn an den Reservisten oder Landwehrmann eine Gestellungs order durch Zustellung an ihn selbst oder in seinen letzten Wohnort oder durch offentliche Bekanntmachung ergangen ist und er diesem Befehls nicht folge leistet, macht er sich der Desertion schuldig und wenn dies innerhalb der ersten fiinf jahre seines Aufenthalts in Amerika geschieht, so schutzt ihn der Vertrag nicht indem die ohne Consens erfolgte Auswanderung erst nach 5 jahrigem Aufenthalt und NaturaHzation su einer rechtHch perfecten Auswanderung wird." In English: "When a member of the Re- serves or the National Guards receives an order to announce himself for service either through the delivery of the order to him personally or at his last dwelling place or through publication and does not obey the command he becomes guilty of desertion and if this occurs within the first five years of his residence in North America 59] GERMAN-AMERICANS IN GERMANY. 33 then the treaty does not protect him since an emigration without consent becomes a complete emigration only after five years' residence and naturalization." This may be definitely accepted as an expres- sion of the view of the Imperial German Govern- ment and therefore J and any other in J's posi- tion has nothing to demand as a right from the German authorities should he be proceeded against for desertion should he visit Germany before his American citizenship is complete. It is hardly necessary to add that those persons who have actually deserted while serving with the colors, have gone to America and have be- come citizens are liable on return to Germany to be prosecuted for desertion no matter if they have been American citizens for many years. In their case, a pardon which may be extended in the other cases is practically excluded. Their only safety from punishment is to stay away from Germany unless a pardon is secured. Eleventh case: K's case though exceedingly simple is not without interest. He is a native of Alsace-Lorraine, and having committed any one of the infractions of military law mentioned, whether one of the mildest or severest is for our purposes quite indifferent, emigrates to the United States and becomes a citizen ; returning to 33 Germany's claims upon [6o Germany he is arrested and charged with the of- fense. Perhaps it is one with which a friend of K's from another part of Germany has already been charged and from the punishment for which he has escaped by means of his American citizen- ship, and he counts upon his citizenship protect- ing him in the same way. In this, however, he is sadly mistaken. The reason is simple. There is no treaty between the German Imperial Govern- ment and the United States covering military of- fenses on the part of former natives of Alsace- Lorraine, that province having been obtained by Germany subsequent to the different treaties al- ready quoted, (see Cahn — Sec. 24, p. 176). The German Government has declared that in cases such as K's it will proceed in accordance with the facts, the inference being that the guilty per- son will be treated as would be a German from other German States who has gone abroad, in a manner violating his military obligations and has returned with or without acquiring other citi- zenship. Twelfth case: The list of examples may be closed with the case of L, which though rare still sometimes occurs. L is a born German who has gone to America and acquired citizenship there; he returns to Germany and residing for more than two years in the State of his birth is considered 6l] GERMAN-AMERICANS IN GERMANY. 33 as having lost his American citizenship. Despite the fact that he has not thereby necessarily re- gained German citizenship he may be drawn into military service but only in case he has not com- pleted his thirty-first year. It should be stated, however, that should he be able to prove that he has been detained in the State of his birth in Ger- many for two years by circumstances beyond his control and that he intends to return to America for the purpose of malting his home there he would be excused from military service though the authorities would have a perfect right to in- sist upon his leaving at once. The proviso re- garding remaining for more than two years in the State of his birth is extremely important since should a born Prussian for example, return to Germany and remain for more than two years in some other German State, Saxony for instance, he could not be considered as having lost his American citizenship. That only takes place when he remains for more than two years in the State of his birth. It should be remembered, however, that no for- eigner has an absolute right to remain in any German State for the mentioned two years or for any other definite length of time. The right re- mains to the German Government to require the departure of any foreigner at any time and for 33 Germany's claims upon [62 any reason that may seem sufficient to the gov- ernment. It goes without saying, however, that this right is only exercised for substantial rea- sons. One of the reasons announced by the gov- ernment as being sufficient is a scornful attitude toward the German Government or the German system or behavior calculated to call forth in others the same feeling. 63] GERMAN-AMERICANS IN GERMANY. 34 CHAPTER VII. WHAT A GERMAN-AMERICAN RETURNING TO GER- MANY MUST DO TO AVOID PUNISHMENT FOR ALLEGED OFFENSES AGAINST MILITARY LAW AND HOW HE SHOULD PROCEED WHEN ACCUSED. Need of a passport, 34. Passport not sufficient, 35. Birth certificate desirable, 36. Pardon for offenses, 37. Renewal of passport, 38. Bodily defect, 39. Notifying the Consul, 40. Need of a Passport. 34. It might seem axiomatic to say that every American visiting Europe should be provided with a passport, issued by the State Department, setting forth the fact of his American citizen- ship and that German-Americans returning to Germany should be especially careful in this re- gard. The fact remains, however, that very many German-Americans return to Germany without this all-important document. The cases pf this kind where such neglect has been followed 34 Germany's claims upon [64 by very disagreeable experiences are far from few. Every Consul has them brought to his at- tention at frequent intervals and must, at times with considerable difficulty, extricate his fellow citizen from difficulties which could have been avoided easily had the person concerned taken the trouble to procure a passport before leaving the United States. In case the traveler, however, has not secured a passport in America, he should do so upon ar- riving in Germany. To this end he should apply to the nearest United States Consul who will make out his application and forward it to the Embassy in Berlin where the passport will be is- sued, signed either by the Ambassador or, in his absence, by the Charge d' Affaires. A passport issued by the State Department requires a fee of one dollar. When application is made through a Consulate the fee is two dollars. Should the applicant be a born German, he must produce either his original citizenship papers, only the final papers having value, or a certified copy of them and should he be the son of naturalized parents, having been taken to the United States during his minority and having acquired citizenship through the parents' naturalization, he must pro- duce either the original or certified copy of his father's final papers. The Consul may also re- 65] GERMAN-AMERICANS IN GERMANY. 35 quire other proofs of identification to be exhib- ited to him, such as a letter of credit, personal letters or other personal documents. Citizenship of the United States is too valuable a possession to be lightly considered and since a passport is the visible evidence of it, recognized by all gov- ernments, the issuance of such a document is properly surrounded by all possible safeguards. Passport Not SufBcient. 35. But, as has been shown in previous chap- ters, the possession of a passport is not sufficient to protect a returning German-American from the consequences of certain offenses against the Ger- man military law. From that class of minor of- fenses already explained and known as "infrac- tions of military discipline" it will protect him from any further punishment than a small money fine. From any punishment for "emigration without consent" it will protect him entirely. Should he, however, have been guilty of not re- turning to his native country after he has re- ceived an order to announce himself for military service or after a war has been declared, he at that time not yet having become a citizen, then he would better to avoid possible trouble, even though the interference might be unwarranted support his passport with a certificate from a Ger- s 36 GERMANY^S CLAIMS UPON [66 man Consular officer to the effect that at the time the order was given or the pubhcation made, he was actually hindered from obeying it or had a position or business which would have been lost to him through returning to Germany at the time. Should he have secured permission to emigrate, being at the time of emigration liable to military service, that is to say, between the ages of 17 and 31 years, he should, in addition to his passport, have in his possession the original permission or a certified copy of it and should he have emi- grated before he was of an age to be liable to military service, then in addition to his passport, he should have his certificate of birth. Birth. Certificate Desirable. 36. It is also well for the son, born in America of German parents, to be provided with a birth certificate in addition to his passport, since his German name, his presumed ability to speak Ger- man and the possession of German relatives in Germany may, in the minds of the German offi- cials form a chain of circumstantial evidence in favor of the theory that he is really a born Ger- man, and while his passport would be sufficient, ultimately, to protect him from any serious con- sequences of this theory, it might not be suffi- cient to enable him to avoid the annoyance which 67] GERMAN-AMERICANS IN GERMANY. 36 the absolute determination of his place of birth through a birth certificate would divert. Should the returning German, however, have been guilty of desertion then he must bring with him on his returning to Germany either a certi- fied statement of the German court to the effect that his offense had been outlawed or, should that not be possible, he should, even though an American citizen, seek a pardon for his offense and should bring with him in addition to his pass- port either the original pardon or a certified copy of it. It must be remarked, however, that the chance of a German-American securing pardon for any one of the severer forms of desertion is remote indeed. But whether in possession of the passport and the other documents mentioned or not, the returning German-American should in any event have with him his final citizenship papers. Whatever his offense may have been the possession of such a document gives him the right to appeal for aid to the Consulates and Embassy of the United States, and should he be found entitled to assistance, forms a basis from which to proceed in his behalf, either by demanding for him immunity from punishment or by requesting favorable consideration of his case, according as his offense is one from the consequences of 37 Germany's claims upon [68 which American citizenship may or may not pro- tect him. Pardon for Offenses. 37. From the liability to punishment for de- sertion while serving with the troops in time of war there is no document that will protect the returning German-American short of an absolute pardon from his former sovereign. It should not be forgotten that the native of Alsace-Lor- raine who has become a citizen of the United States is liable, despite his passport, to arrest should he return to his native country, for even the smallest offense against the military law, since, as already mentioned, there is no treaty between the United States and Germany covering this province. For him a pardon is especially de- sirable. Renewal of Passport. 38. In another respect also should the returning German-American be careful, and that is with regard to the renewal of his passport. No pass- port is valid for more than two years, and while a passport which has expired may be considered presumptive evidence of the citizenship of the possessor, it confers upon him no privileges nor does it give him any right to claim the protection 69] GERMAN-AMERICANS IN GERMANY. 39 of American representatives in Germany. For this reason, the German-American compelled to remain in Germany longer than two years, should not only secure a renewal of his passport, but should make a sworn declaration of his intention to return to the United States for the purpose of resuming the duties of citizenship there and should set forth the reasons why he is compelled to remain in his native State of Germany longer than the two years accorded him by the German Government. This declaration he should have ready to exhibit to the German authorities upon demand since having remained in his native State for more than two years he may be considered by the German Government to have renounced his American citizenship and may then be pro- ceeded against on account of old infractions of German military law with regard to which the evi- dence of American citizenship protected him up to the time of the passport's expiration. Bodily Defect. 39. It may have been also that the born Ger- man was unable to perform military service by reason of a bodily defect of some kind. For this reason, unless the fact of his having been ex- cused by the military authorities was recorded by them, he should be able to present upon demand 40 GERMANY S CLAIMS UPON [70 a physician's certificate setting forth the fact of his incapacity for miHtary service at the time he became liable to serve. Notifying the Consul. 40. Should the returning German-American be accused of violation of the military law, whether justly or unjustly, he should notify the nearest Consul. Should he have been already arrested then he should also notify the Consul without de- lay. If the accused is in possession of a pass- port or his citizenship papers the Consul must in- terest himself at once actively in the accused's behalf. The latter should explain the facts of the case to the representative of the United States, exhibiting first the documentary evidence prov- ing himself to be a citizen. No time should be lost in thus applying to the Consul and the facts having been placed in his possession there will remain nothing more that the accused can do but await the course of events, unless it may be to procure bail. Of course it is also understood that before he has found it necessary to apply to the Consul the accused has exhibited to the authorities the docu- mentary evidence showing him to be an Ameri- can citizen. Should he be summarily arrested his passport may not be taken from him, though 71 ] GERMAN-AMERICANS IN GERMANY. 40 all other documents, even his citizenship papers, may be removed, since the German law recog- nizes the necessity of his remaining in possession of his passport in order that he may justify his claim to the aid and protection of the Consul. Even though the accused may be arrested in a place where he has no acquaintance legal advice may not be refused to him and he may thus es- tablish communication with the American Con- sul even should the officials refuse him permis- sion to write directly to this official. There is hardly a large city in Germany where either aji American Consul, Vice Consul or Consular Agent cannot be found, but in the event of the arrest taking place in a part of Germany remote from any large city a telegram to one of the Con- sulates General, at Berlin, Dresden, Hamburg, Coburg or Frankfort will result in the Consular official nearest the accused being informed and in communication thus being established. While the German Government is disposed to be as courteous as possible to the United States, its officials and other citizens and while because of this courtesy it has upon application by the United States Embassy in many cases granted pardon, or refrained from further procedure against return- ing German-Americans for violation of the mili- tary law, it should be borne in mind that these 40 Germany's claims upon [72 cases have been exceptions and may not be consid- ered by other offenders as giving them cause to expect freedom from the penalty for like offenses. The German authorities by reason of their perfect system of records, have long memories and there- fore one knowing himself guilty of the offense of desertion will find his surest immunity from pun- ishment in keeping away from Germany entirely. 73] GERMAN-AMERICANS IN GERMANY. 4I CHAPTER VIII. GENERAL BEHAVIOR WHICH SHOULD BE OBSERVED BY GERMAN-AMERICANS RETURNING TO GERMANY TO AVOID CONFLICT WITH GERMAN LAW. THEIR DUTIES, PRIVILEGES AND RIGHTS. Demeanor desirable, 41. Danger of drawing comparisons, ^. Reference to the Emperor, 43. Lese Majeste, 43. Disrespect for the Government, 44. Assisting emigrants, 45. Conforming to regulations, 46. Strict obedience to law, 47. Freedom from taxation, 47a. Demeanor Desirable. 41. It may not be amiss to venture a few re- marks upon the demeanor desirable to be ob- served on the part of bom Germans who have acquired citizenship in the United States and who after long residence in America during which they have gotten out of touch with Ger- man customs and conditions return to their na- 41 Germany's claims upon [74 tive land for a longer or shorter stay. There are several reasons why circumspection is necessary, reasons which lie in the essential difference be- tween the two systems of government and the attitude assumed or assumable by the citizens of each towai-ds their respective governments. The attitude taken as a matter of course in America may not be assumed at will by the citizens of the United States towards the German Government without the possibility of disagreeable conse- quences arising. The reason is not far to seek. In the liberal atmosphere of America where freedom of personal action ?nd freedom to criti- cise men and measures, governmental and private, have reached an extent only dreamed of in the most radical circles on the Continent, the German soon finds himself so much at home that he speed- ily learns to breathe the air of complete personal liberty. He accommodates himself quickly to his new surroundings, to new habits of thought, of judgment and of assertion which in the old days in his native land were unknown to him. So much a part of him have become his new points of view that it is practically impossible for him afterwards to clothe them with the circumspec- tion necessary when he brings them with him into the different conditions existing in the land of his birth. 75] GERMAN-AMERICANS IN GERMANY. 42 Danger of DraT/ing Comparisons. 42. Therefore either unconsciously or provoked by the astonishing differences now for the first time apparent to him upon his return to his native land after years of residence in America, he finds himself continually dravi^ing parallels between customs and conditions in the old world and the new; he finds himself giving utterance to criti- cism when with his former acquaintances, or new made friends which he never would have dared in the old days when he was still a German sub- ject. Whether these outspoken opinions are founded upon an innocent desire to instruct his companions or are merely called forth by a com- parison he cannot resist making, is a matter of indifference. The result remains the same — it is dangerous. There are many laws in Germany which forbid conduct or expressions of opinion that in the United States are freely allowed. Though in Germany as well as elsewhere, ignorance of the law excuses no man, it is through ignorance of the fact that what in America is permitted and at times even praiseworthy is punishable in Ger- many, that the former German subject may find himself in a decidedly unpleasant situation. In the first place, the returned German should re- member his American citizenship does not pro- 43 Germany's claims upon [76 tect him in the slightest from any infraction of the German law while in Germany. He is as much subject to the German law as any subject of the empire. Lese Majeste. 43. It will be well then to bear in mind the especial points, founded upon experience of actual occurrences, in which his behavior should be ex- ceedingly circumspect. First with reference to the Emperor. Any disrespectful allusion (lese majeste) to him may be reported by any hearer to a prosecuting attorney and when that is done the latter is compelled to prosecute the offender. The penalty is imprisonment for a longer or shorter time and is imposed frequently. Nor must any member of the Imperial family be spoken of disrespectfully, nor any other ruler of a German State. When one considers the freedom to criticise public men in the United States, including the President, it may be readily imagined, how a German-American who has taken an active inter- est in the political aflfairs of his adopted country might, in an unguarded moment, speak of per- sonages in Germany in a manner which might be construed as an infraction of the law and be convicted of lese majeste in the severest form. 77] GERMAN-AMERICANS IN GERMANY. 44 Nor must the returned native refer in con- temptuous terms to any Imperial organization. For example, he must not utter an unfavorable opinion too freely concerning the courts, army, the navy or any other department of the govern- ment. An offense of this kind comes under the head of "Beleidigung der Regierung" (Insult to the Government) and is also punishable by fine or imprisonment or both. He must be especially careful in case of dis- pute with any public official such as a railroad, a postoffice or a police official, and such disputes may arise very easily, not to forget himself so far as to address a single disrespectful word to the official in question. Should he do so, the latter has only to make his complaint to the nearest prosecuting attorney and the other, whether he was in the right or in the wrong regarding the original matter in dispute, will find himself pro- ceeded against for "Beamten Beleidigung" (in- sulting an official) an insult duly recognized in the German penal code and punishable also with imprisonment. Disrespect for the Goveinment. 44. The same code in addition provides for the punishment of that person who speaks among his companions of the government, of the army. 45 Germany's claims upon [78 or of military service in general in such terms as are likely among these latter to inculcate a dis- paraging sentiment toward anyone of these or- ganizations or to call forth contemptuous asser- tions regarding them. It is especially set forth that if a person, not a subject to Germany, is guilty of such an offense he may be ordered forth- with to leave the country or even be punished with imprisonment. When one considers that the German-American of long years of residence in America may not have seen a single regular soldier during his entire time of residence in the United States it will be seen how easily he might be induced to institute invidious comparisons upon his return to Germany where the uniforms of regular soldiery -are to be seen on every hand. In this case, comparisons are not only odious but are actually dangerous and the visitor to Ger- many will do well to refrain entirely from ex- pressing them. Assisting Emigrants. 45. In another respect also he must be ex- tremely careful and that is not to give advice or assistance with regard to emigration to any Ger- man v/ho may have been drawn into military ser- vice or who may be liable to military duty. Should he do so, and in consequence of his ad- 79] GERMAN-AMERICANS IN GERMANY. 45 vice or assistance the person concerned emigrates without the consent of his government then the advisor malces himself particeps criminis and may be punished with imprisonment by the Ger- man law even though the person guilty of emi- gration without permission should escape. That offenses of this kind may readily happen lies in the fact that the visiting German-American is usually well-to-do and usually has the disposi- tion and the means to assist friends or relatives in Germany towards bettering their condition by going to America. His advice and assistance may have been given innocently but that does not serve to place him beyond the reach of the law. Should he have emigrated to America when very young the visiting German-American will find the rules and regulations which he must observe in Germany entirely new and unknown to him and should he have emigrated when ma- ture, returning after a lapse of years, he will per- haps have forgotten how necessary it was for him formerly to be circumspect in his behavior. It is, therefore, earnestly to be urged that in his en- tire association with his former fellow country- men he guard himself from comment of an in- vidious nature upon men and things in Germany. 46 Germany's claims upon [8o Conforming to Regulations. 46. It may also be remarked that he should, without resistance, conform to the numerous gov- ernment and municipal regulations which will con- front him on every hand in, Germany and which he will not have experienced in the less bureaucratic United States. It of course goes without saying that any infraction of the civil or criminal law will be as heavily visited upon him in Germany as it would were he a German subject. Although these remarks are intended in the first instance for German-Americans, the facts stated apply with equal force to native born citi- zens of the United States. Strict Obedience to Law. 47. The duties, then, of a German-American returning to his native land are comprised in a strict obedience to the law, to all municipal regu- lations, to avoidance of invidious criticism of any person or thing connected with the government and to observance of the utmost circumspection in word and deed. He has, however, certain rights and privileges. He may remain in any State of Germany, with the exception of his na- tive State, as long as he likes for purposes of busi- ness or pleasure but not more than two years in his native State, without losing his American 8l] GERMAN-AMERICANS IN GERMANY. 47 citizenship ; he may sue and be sued and demand the protection or service of the law the same as any German subject; he may not be compelled to do military duty even in time of war, so long as he remains a citizen of the United States ; in case of arrest his passport, the evidence of his Ameri- can citizenship may not be taken and he may by means of it claim the protection of his adopted country's representatives in case of need, though not in case of financial necessity, unless he be a sailor sailing under the American flag. In this latter case should he require aid of a material kind because of want or sickness, it must be furnished him, on his presentation of his proofs of citizenship, by the nearest United States Consul. The German-American in Ger- many, in short, possesses all the privileges and rights accruing to German subjects with the addi- tions noted, conferred upon him by the fact of his American citizenship. Should children be born to him in Germany, they do not need to be natur- alized as citizens in America should he return with them to the United States during their mi- nority nor can they be drawn into military ser- vice, unless the German Government can prove that the father had no intention of returning to his adopted country and had lost his American citizenship. 6 47a. Germany's claims upon [82 Freedom From Taxation. 47a. The right of freedom from taxation for a term, varying in the different German States but in general from six months to a year, is also enjoyed by the German-American visiting his native land. It is self-evident, however, that should he remain for a longer term he must sub- mit to the imposition of the same taxes as the German subject of the same fortune. He may not be drawn on a jury, but is competent to give his testimony in a case at law and should he him- self be on trial for a criminal offense he may re- quest the presence of the nearest United States Consul. He may marry in Germany and as soon as the marriage takes place his wife must be assumed to have lost her German allegiance and to have transferred it to the United States, but he must conform in the marriage preliminaries to the requirements of the local German law. In case of doubt as to his proper conduct in any particular matter, a doubt called forth by reason of his American citizenship, he has the right and privilege at any time of applying to a Consulate of the United States or to the Embassy for advice which the proper official must give him. In short, the German-American in Germany, with the exceptions noted, stands upon exactly 83] GERMAN-AMERICANS IN GERMANY. 47a the same footing as the native bom citizen of the country which has conferred upon him the proud possession of American citizenship. 48 Germany's claims upon [84 CHAPTER IX. PROPER PROCEDURE OF A CONSUL WHOSE AID OR PROTECTION IS DEMANDED BY A GERMAN- AMERICAN IN GERMANY. When Consul may intervene, 48. No advice to evade the law, 49. When proceedings have begun, 50. No aid to wilful offenders, 51. No financial aid, 52. When Consul May Intervene. 48. Should the aid, protection or advice of a Consul be requested by a German-American it should be given by him at once, a duty of this kind taking precedence over any other official work he may have in hand. The Consul, how- ever, may only intervene on behalf of a fellow citizen after he has thoroughly satisfied himself that the latter is really a citizen of the United States and thereby entitled to his services. To this end, he must demand the passport of the ap- plicant and in case that cannot be produced then either his original citizenship papers or a certified copy of them. Then, too, since a passport may have been stolen, the Consul may also in case he 8s] GERMAN-AMERICANS IN GERMANY. 49 doubts the identity of the applicant, demand identification through personal correspondence, through some person known to him or by any means which will serve to resolve all doubts. Should such means of identification entirely fail then the passport must be accepted as prima facie evidence of citizenship, though so long as the smallest doubt remains as to the passport being rightfully in the possession of the applicant, the Consul must exercise the greatest possible fore- sight. Having satisfied himself that the appli- cant is really a naturalized citizen of the United States, it goes without saying that he must con- sider him precisely as he would a native born citizen. No Advice to Evade the Law. 49. Should only his advice be asked the Consul should give it freely but with the limitation that it should never include advice looking toward the transgression or evasion of the German law. This may seem a self-evident proposition. As a mat- ter of fact it is an error into which a Consul might easily fali. For example : A German- American guilty of an infraction of the military or other law before his emigration returns to Germany and learns that the military authorities :are seeking him. He goes* to the nearest Consul 49 Germany's claims upon [86 for advice and from him learns that his offense is one from the penalty for which his American citizenship is powerless to protect him. It may be remarked that his only safety is getting over the frontier of Germany into the neighboring country before the German authorities can arrest him. But the advice to this effect or assistance in getting over the border the Consul may not officially give him. Should he do so, he would render himself guilty of an infraction of Ger- many's law through aiding in the escape of an offender against German law. While for his action he could not be proceeded against in the court, his exequatur could be revoked and the German Government could, and probably would, request the Government of the United States to recall him. The Consul, must, accordingly, con- tent himself with setting before the applicant the bare facts. He may point out to him whether his offense is one punishable by the German law or whether it is one against whose punishment he may protest. He may point out to him, without advis- ing him one way or the other, what the probable penalty will be, should he be arrested, in case the offense is one admitting of no doubt. Should the applicant draw the inference that his only safety lies in flight and carry out the inference, that is his own affair and does Aot concern the Consul who 87] GERMAN-AMERICANS IN GERMANY. 50 cannot on that account be justly accused of being an accessory. When Proceedings Have Begun. 50. Should the offense be one from the conse- quence of which the possession of American citi- zenship protects the applicant then, until action is taken against him, the Consul can not actively in- tervene ; though in this case should it «eem to him best to advise his fellow citizen to leave the coun- try he could not be held accountable for having given such advice. Should proceedings have been begun already against the applicant, then the Consul should report the facts without delay to the Embassy, enclosing the passport or citizen- ship papers of the accused and setting forth with the utmost exactness the situation of affairs. In the meanwhile he should satisfy himself that the accused, if imprisoned, is receiving proper treat- ment and if already brought before the court should see to it that he is properly defended. His further procedure in the matter will be de- termined by the Embassy. Should the accused be brought before the court for judgment before there is time to send a written communication to the Embassy and receive a reply, then the Consul should enter a protest against immediate judg- ment, should request postponement of further 50 Germany's claims upon [88 action in the matter until he can communicate with the Embassy and should wire a summary of the case to the Embassy at once, following it with a written exposition of the facts. Should the accused have been judged and imprisoned already when the matter is brought to the Con- sul's attention then he must without delay com- municate the facts to the Embassy. At the same time communications are sent to the Embassy duplicates of them should be sent by mail to the State Department through the Consul General under whom the Consul is placed. Only in cases of the utmost emergency is the Consul of his own initiative justified in making a protest or taking any steps other than those di- rected toward securing for the accused proper treatment and a fair hearing under German law. While such emergencies are conceivable they are not likely to occur. It should also be borne in mind that there is no allowance to Consular offi- cers of moneys to pay counsel for representing persons accused before the German law and that while a Consul may secure such counsel for a per- son accused the latter must defray all expense himself unless the Embassy or the Department of State instructs to the contrary. 89] GERMAN-AMERICANS IN GERMANY. SI No Aid to Wilful Offenders. 51. To persons wilfully guilty of infractions of the law (vid. Consular Regulations Sect. 432) the good offices of the Consul may not be extended. "It is the duty, however, of the Consul to endeavor on all occasions to maintain and promote all their (citizens abroad) rightful interests, and to pro- tect them in all privileges that are provided for by treaty or are conceded by usage. If the repre- sentations are made to local authorities and fail to secure the proper redress, the case should be reported to the Consul General, if there be one, or to the diplomatic representative, if there be no Consul General, and to the Department of State." No Financial Aid. 52. Financial aid may only be extended by a Consul to an applicant who is a citizen, at his own cost, unless the latter should actually be a sailor serving under the flag of the United States, in which case the necessary outlays must be reported to the Department of State upon forms provided for that purpose and will be repaid in the same manner as other allowed expenses but there is no fund for the assistance abroad of American citi- zens in distress when such citizens are not actu- ally seamen. The Consular Regulations, a copy of which should be found in every Consulate, 52 GERMANY'S CLAIMS UPON [90 prescribe the methods of relief and when it may be extended and should in these and in all other cases be carefully studied by every Consular of- ficer. 91 ] GERMAN-AMERICANS IN GERMANY. 53 CHAPTER X. SUMMARY. Why detail is omitted, 53. Essential facts furnished, 533. Invidious comparisons, S3b. Immediate intervention, S3c. Object of the book, S3d. Why Detail is Omitted. 53. In the preceding pages the effort has been made to set forth the Habihty, non-Habihty, rights, privileges and duties of German-Americans re- turning to Germany, in as concise a manner as possible. Much detail has been omitted and con- ciseness even at the expense of perhaps desirable explanation, has been aimed at in order that the German-American returning to Germany may have set before him in as compact a form as pos- sible the situation which will confront him upon his return to his native country. Essential Eacts.- 53a. It has also been thought desirable not to encumber with details the facts set forth for the reason that, primarily, the intention is to furnish a 53b Germany's claims upon [92 convenient digest and exposition of principles for the use of United States Consuls, who, while they may find in the preceding pages the essential facts required by them, may still be expected to be in a position to have access to the necessary sources of information should they desire to go more deeply into the matters set forth. In sum- marizing the conclusions reached it may first be observed that a German-American intending to return to Germany for a visit should first inform himself as to whether he is so situated as to run counter to German law after his return. Should he have been guilty of some trivial transgression such as emigration without permission, he need have but little fear. Should he, however, have been guilty of desertion it would be much better for him to remain away from the country of his birth. It has also been made evident that he should not make the journey without providing himself with a passport issued by the State De- partment, but that in classes of offenses such as desertion, committed prior to his obtaining citi- zenship, the fact of such citizenship, of which the passport is prima facie evidence, does not protect him. Invidious Comparisons. S3b. Further, the German-American return- 93] GERMAN-AMERICANS IN GERMANY. 53c ing to Germany should at all times have in mind the serious consequences likely to arise through ill-judged, untimely or invidious com- parisons between German and American institu- tions. He should also remember that it is the duty of his adopted country's representatives in Germany to afford him without delay all proper protection and therefore in case of need in Ger- many apply at once to the nearest United States Consul for advice or assistance. Immediate Intervention. 53c. On the other hand, it has been set forth that a Consul of the United States in Germany has no higher duty than that of offering at once, when his intervention is justified, all possi- ble aid and protection to his naturalized fellow citizen who may call upon him for the exercise of his good offices. He confers no favor by ex- tending his services in such cases. It is to him a paramount duty, but it is no less his duty to avoid extending aid in cases where it is not justified, or where by so doing his action would conflict with treaty provisions or with international comity He should bear in mind that urgent as his duty is to afford his fellow citizens protection it is no less his duty to be absolutely certain that the applicant for his services is wholly worthy and justified in 53d GERMANY'S CLAIMS UPON [94 demanding them. Never a year passes without many cases arising in Germany of German-Amer- icans finding themselves in exceedingly disagree- able positions through former transgressions of the German military law; cases which at times cause great anxiety and trouble to the representa- tives of the United States in the German Empire, and in many of which they are powerless to aid. Object of the Book. S3d. If then, this little volume should re- sult, through making clear in a concise form to the former their duties and rights and to the lat- ter the privileges and limitations of their power and should aid in some degree in removing the difficulties and possibly annoying consequences in- volved in a return to Germany of German-Ameri- can citizens, the object involved in writing it will have been accomplished. 95] GERMAN-AMERICANS IN GERMANY. 54 CHAPTER XI. THE NATURALIZATION TREATIES. Treaty with North German Union, 54. States comprised in North German Union, S4a. Treaty with Baden, 54b. Treaty with Bavaria, 540. Treaty with Hesse, S4d. Treaty with Wiirttemberg, 54e. With North German Union. 54. It may be of interest to him who desires to pursue further the study of the questions set forth in the preceding pages to have at hand the verbatim treaties between the United States and the several German States regarding naturaHza- tion, for, be it observed, there is no general treaty on the subject between the German Empire as a whole and the United States. To the German- American it is also of interest to know under which treaty his native State comes. For this reason the list of the various States, together with the treaties to which reference may be made in consideration of the cases of German-Ameri- cans who may have been offenders against the German military law is given below : 54a GERMANY S CLAIMS UPON [96 States Comprised in North German Union. 54a. Anhalt Treaty with North German Union. Alsace Lorraine > No treaty exists. Baden Special treaty. Bavaria , (See below.) Bremen Brunswick Treaty with North Hesse (North). ' German Union. Hesse (South). Special treaty. (See below.) Hamburg Lippe Liibeck Mecklenburg Schwerin Mecklenburg Strelizt Oldenburg Prussia Reuss altere Linie Reuss jiingere Linie Treaty with North Saxony- German Union. Saxon Alteburg Saxon Coburg Gotha Saxon Meiningen Saxon Weimar Schaumburg Lippe Schwarzburg Sonderhausen Schwarzbnrg Rudolstadt Waldeck Wiirttemberg Special treaty. 97] GERMAN-AMERICANS IN GERMANY. 54a The treaty with the North German Union, com- prising as will be seen above, most of the States of Germany is as follows : Article i. Citizens of the North German Con- federation 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 Con- federation to be American citizens and shall be treated as such. Reciprocally citizens of the United States who become naturalized citizens of the North German Confederation and shall have resided uninterrupt- edly within North Germany five years shall be held by the United States to be North German citizens and shall be treated as such. The de- claration of the intention to become a citizen of the one or the other country has not for either party the effect of naturalization. Article 2. A naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an ac- tion punishable by the law of his original coun- try and committed before his emigration ; saving always the limitations established by the laws of his original country. Article 3. The convention for the mutual de- livery of criminal fugitives from justice in certain 7 54b GERMANV'S CLAIMS UPON [98 cases, concluded between the United States on the one part and Prussia and other States of Ger- many on the other part, the i6th of June, 1852, is hereby extended to all the States of the North German Confederation. Article 4. 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 Treaty with Baden. S4b. Article i. Citizens of the Grand Duchy of Baden who have resided uninterruptedly with- in the United States of America five years and before, during, or after that time, have become or shall become naturalized citizens of the United States, shall be held by Baden to be American citizens, and shall be treated as such. The de- claration of intention to become a citizen of the one or the other country has not for either party the effect of naturalization. Article 2. A naturalized citizen of the one party on return to the territory of the other party, remains liable to trial and punishment for an ac- 99] GERMAN-AMERICANS IN GERMANY. S4b tion punishable by the laws of his original coun- try and committed before his emigration, saving always the limitation established by the laws of his original country, or any other remission of liability to punishment. In particular a former Badener who, under the first article, is to be held an American citizen, is liable to trial and punish- ment according to the laws of Baden for non- fulfillment of military duty : — 1. If he has emigrated after he has been en- rolled as a recruit for service in the standing army. 2. If he has emigrated while in service under the flag, or during leave of absence for a limited time. 3. If, having a leave of absence for an unlim- ited time or belonging to the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out. On the other hand a former Badener, natur- alized in the United States, who, bv or after his emig-ration has transeressed or shall transgress the leeal provisions of military duty by any acts or omission other than those above enumerated in the clauses numbered 1-3, can on his return to his original country neither be held, subsequently, S4C GERMANr's CLAIMS UPON [lOO to military service nor remain liable to trial and punishment for the nonfulfillment of his military duty. Moreover an attachment on the property of an emigrant for nonfulfillment of his military duty, except in the cases designated in the clauses 1-3, shall be removed so soon as he shall prove his naturalization in the United States according to the first article. Article 3. The convention for the mutual de- livery of criminals, fugitives from justice, con- cluded between the Grand Duchy of Baden on the one part and the United States on the other part, the 30th day of January, 1857, remains in force without change. Article 4. The emigrant from the one State who, according to the first article is to be held as a citizen of the other State, shall not on his re- turn to his original country be constrained to re- sume his former citizenship. Yet, if he shall on his own accord re-acquire it and renounce the citizenship by naturalization, such a renunciation is allowed and no fixed period of residence shall be required for the recognition of the recovery of citizenship in his original country. The Treaty with Bavaria. 54c. Article i. Citizens of Bavaria who have become or shall become naturalized citizens of the lOl] GERMAN-AMERICANS IN GERMANY. S4C United States, and shall have resided uninterrupt- edly within the United States, for five years, shall be held by Bavaria to be American- citizens and shall be treated as such. The declaration of intention to become a citi- zen of the one or the other country has not for either party the effect of naturalization. Article 2. A naturalized citizen of the one party on return to the territory of the other re- mains liable to trial and punishment for an ac- tion punishable by the laws of his original coun- try, and committed before his emigration, saving always the limitations established by the laws of his original country, or any other remission of liability to punishment. Article 3. The convention for the mutual de- livery of criminals, fugitives from justice, in cer- tain cases, concluded between the United States on the one part and Bavaria on the other part, the I2th day of September, 1853, remains in force without change. Article 4. If a Bavarian, naturalized in Amer- ica, renews his residence in Bavaria 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 S4C GERMANY'S CLAIMS UPON [l02 country resides more than two years in the other country. Protocol relating to the first article of the treaty : Inasmuch as the copulative "and" is made use of it follows of course that not the naturalization alone, but an additional five years' uninterrupted residence is required, before a person can be re- garded as coming within the treaty; but it is by no means requisite that the five years' residence should take place after the naturalization. It is hereby further understood that, if a Bavarian has been discharged from his Bavarian allegiance or an American from his citizenship and then acquires naturalization in the other country in a rightful and perfectly valid manner, then an addi- tional five years' residence shall no longer be re- quired, but a person so naturaHzed shall upon the moment of his naturalization be held and treated as a Bavarian and reciprocally as an American citizen. 2. The words "resided uninterruptedly" are obviously to be understood as not of a continuous bodily presence, but in the legal sense, and there- fore a transient absence, a journey or the like, by no means interrupts the period of five years con- templated by the first article. 103] GERMAN-AMERICANS IN GERMANY. 54C Relating to the second article of the Treaty: I. It is expressly agreed that a person, who under the first article, is to be held as an adopted citizen of the other State, on his return to his original country cannot be punished for the act of emigration itself, even though at a latter day he should have lost his adopted citizenship. Relating to the article 4 of the treaty: — I . It is agreed on both sides that the regulative powers granted to the two governments respec- tively by their laws for protection against resi- dent aliens, whose residence endangers peace and order in the land are not affected by the treaty. In particular the regulations contained in the sec- ond clause of the tenth article of the Bavarian military law of the 30th of January, 1868, accord- ing to which Bavarians, emigrating from Ba- varia before the fulfillment of their military duty cannot be admitted to a permanent residence in the land till they have become thirty-two years old is not affected by the treaty. But yet it is established and agreed that by the expression "permanent residence" used in the said article, the above described emigrants are not forbidden to undertake a journey to Bavaria for a short period of time and for definite purposes, and the royal Bavarian Government moreover cheerfully declares itself ready in all cases in which the emi- 54C Germany's claims upon [104 gration has plainly taken place in good faith, to construe the law mildly. 2. It is hereby agreed that when a Bavarian, naturalized in America and reciprocally an American, naturalized in Bavaria, takes up his abode once more in his original country without the intention of returning to the country of his adoption, he does by no means thereby recover his former citizenship; on the contrary in so far as it relates to Bavaria it depends upon the King whether he will or will not grant the Bavarian citizenship anew. The fourth article shall accordingly only have the meaning that the adopted country of the emi- grant cannot prevent him from acquiring once more his former citizenship; but not that the State to which the emigrant originally belong shall be bound to restore him at once to his orig- inal relation to it. On the contrary the citizen naturalized abroad must first make application to be received again in his original country in the manner prescribed by its laws and regulations, and must require citizenship anew exactly like any other alien. Yet it is left to his own free choice whether he will adopt that course or will preserve the citizen- ship of the country of his adoption. I05] GERMAN-AMERICANS IN GERMANY. 54(1 Treaty with. Hesse. 54d. The treaty with Hesse (northern part) is as follows : Article i. Citizens of the parts of the Grand Duchy of Hesse not included in the North German Confederation who have become or shall become naturalized citizens of the United States of America and shall have resided uninterrupt- edly within the United States five years, shall be held by the Grand Ducal Hessian Government to be American citizens and shall be treated as such. Reciprocally citizens of the United States of America who have become or shall become citi- zens of the above prescribed parts of the Grand Duchy of Hesse and shall have resided uninter- ruptedly therein five years, shall be held by the United States to be citizens of the Grand Duchy of Hesse and shall be treated as such. The declaration of the intention to become a citizen of the one or the other country, has not for either party the effect of naturalization. Article 2. A naturalized citizen of the one party on his return to the territory of the other 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. 54e Germany's claims upon [io6 Article 3. The convention for the mutual de- livery of criminals, fugitives from justice, in cer- tain cases, concluded between the United States of America and the Grand Duchy of Hesse on the 1 6th of June, 1852, remains in force without change. Article 4. If a Hessian, naturalized in Amer- ica, but originally a citizen of the parts of the Grand Duchy not included in the North German Union, renews his residence in those parts with- out 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 coun- try. Treaty with Wurttemberg. S4e. Article i. Citizens of Wiirttemberg who have become or shall become naturalized citizens of the United States and shall have re- sided uninterruptedly in the United States five years shall be held by Wiirttemberg to be Ameri- can citizens and shall be treated as such. The declaration of the intention to become a citizen of the one or the other country has not for either party the efifect of naturalization. I07] GERMAN-AMERICANS IN GERMANY. 546 Article 2. A naturalized citizen of the one party on his return to the territory of the other 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 limitation established by the laws of his original country or any other remis- sion of liability to punishment. Article 3. The Convention for the mutual de- livery of criminals, fugitives from justice, in cer- tain cases, concluded between Wiirttemberg and the United States the i6th of June, 1852, re- mains in force without change. Article 4. If a Wtirttemberger, naturalized in America, renews his residence in Wiirttemberg without the intent to return to America, he shall be held to have renounced his naturalization in tne 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. PROTOCOL EXPLANATORY OF THE CONVENTION. Relation to the first article of the Treaty : It is, of course, understood that not the naturali- zation alone, but a five years' residence is also required, before a person can be regarded as com- ing within the treaty; but it is by no means re- log] GERMAN-AMERICANS IN GERMANY. 546 1. After their enrollment in the active army and before their discharge from the same or 2. After they have been called into service with the class of their age or on the placing the mili- tary force on a war footing or who have been present at a muster and have been designated as a part of the contingent to serve with the colors. Relating to the fourth article of the Treaty : It is agreed that the fourth article shall not re- ceive the interpretation that the naturalized citi- zen of the one State who returns to the other State, his original country, and there takes up his residence, does by that act alone recover his for- mer citizenship, nor can it be assumed that the former State to which the emigrant originally belonged is bound to restore him at once to his original relation. On the contrary it is only in- tended to be declared: that the emigrant so re- turning is authorized to acquire the citizenship of his former country, in the same manner as other aliens in conformity with the laws and regulations which are there established, yet it is left to his own free choice, whether he shall adopt that course or will preserve the citizenship of the country of his adoption. With regard to this choice, after a two years' residence in his original country he is bound, if so requested by the proper S4e GERMANY'S CLAIMS UPON [lIO authorities, to make a distinct declaration, upon which these authorities can come to a decision with regard to his being again received into citi- zenship or his further residence in the country in the manner prescribed by law. Ill] GERMAN-AMERICANS IN GERMANY. 5$ CHAPTER XII. CONCLUSION. Acts of amnesty, SS- Appreciation of American citizenship, 56. Acts of Amnesty. 55. A word of final explanation may be added : There have been issued from time to time by the German Emperors so called Acts of Amnesty (Gnaden Erlasse) under which persons having committed offenses against the military law may find themselves freed from disagreeable conse- quences. The general character of these Acts of Amnesty and their complicated nature forbid their publication in a volume intended for gen- eral reading and therefore untechnical in its character. It is also the case that in so far as they concern German-Americans they extend amnesty for acts against the consequence of which the possession of American citizenship, as set forth in the preceding pages, is also a protec- tion. However, an inquiring German-American ■"r^^, having read the foregoing pages and having studied the treaties quoted, recognizes himself as 56 Germany's claims upon [112 having been guilty under the German military law of some offense, might with advantage, be- fore returning to Germany, inquire whether his case comes under any one of the acts of amnesty. In this case he should address the Department of State, setting forth the facts clearly and ask for the assistance of the United States Embassy in Germany in the matter, or, should he be already in Germany, either apply directly to the Embassy or through the nearest Consulate. In any one of these cases it cannot be too strongly insisted upon that he must be prepared to submit indubitable proofs of his American citizenship. Appreciation of American CitizensMp. 56. In conclusion it should be reiterated that a German-American returning to his native State may best show his appreciation of the splendid gift of American citizenship not alone by provid- ing himself with every possible safeguard against coming into conflict with German military or civil law, but by an avoidance of any invidious criticism and comparison, which might not only involve disagreeable personal consequences but which would bring discredit upon American citi- zenship and upon his adopted country which counts the Americans of German birth as among its best citizens. INDEX ACTS OF AMNESTY, 55. ADVICE, must not be given by German Americans to German soldier, 45. by Consul to offender against German law pro- hibited, 49. AGE, above 31 years exempts in peace from German service, 15. of liability to military service in Germany, 15. AID, may not be extended by Consul to violators of law, 52. financial, may only be extended by Consul to sailors, 52. ALSACE-LORRAINE, no treaty covering, 37. AMBASSADOR, request of, usually of avail, 31. AMERICAN CITIZENSHIP, how secured, 3- when acknowledged by Germany, 3. evidences establishing it, 3. first secured after five years' residence, 3. by soldiers or sailors in less time, 3. conferred on minor children of naturalized pa- rents, 4. appreciation of, how well shown, 56. confers right to demand Consular aid, 5. recognized by Germany with limitations, 6. over two years' residence in Germany may lose, 9. no protection against crime, 9, 31. 8 INDEX. [114 does not protect soldiers emigrating without per- mission, 12. loss of, may bring liability to service, 22. AMERICAN INSTITUTIONS AND GERMAN, avoid comparisons, 42. APPLICATION FOR PASSPORT, 34. ARTICLES OF WAR IN GERMANY, 18. BADEN, naturalization treaty with, 4, 54. cancels judgment on proof of citizenship, 29. BAVARIA, naturalization treaty with, 8, 54. BODILY DEFECT, excuses from German military service, 39. CAHN ON LIABILITY, to military law, 19. CASES POSSIBLE, of returning German-Americans' liability and non-liability — Twelve supposititious cases, from A to L, inclusive, covering the va- rious complications that have occurred and may occur again of born Germans returning to their native land, and finding themselves either free from or in conflict with the German mili- tary law, set forth at length, 33. CHILDREN, MINOR, not liable to German military law, 16. CIVIL LAW and military cases, 27. CIRCUMSPECTION, of returned Germans, why nec- essary, 41. CONSUL, may receive application for passport. 34. may demand identification of applicant, 34. procedure of, whose aid is asked, 48. must satisfy himself of applicant's citizenship, 48. may not advise offender against German law, 49. first duty, I. lis] INDEX. may intervene, when, 50. must report to Embassy in certain cases, 50. may not aid violator of the law, 51. may officially aid financially sailors only, 52. CONSULAR AID, may be demanded by citizen, 5. COMPARISONS between German and American in- stitutions to be avoided, 42. COUNSEL, no allowance to Consul for, 50. COURTS, Germans subject to two, 26 CRIME IN GERMANY PRIOR TO CITIZENSHIP, punishable, 9, 12. CRITICISM OF GERMAN INSTITUTIONS, to be avoided, 42. DEMEANOR DESIRABLE on part of visiting Ger- man-Americans in Germany, 41. DESERTER, better avoid Germany, 17. DESERTION, excepted from non-liability, 16. definition of, 17 and 19. German law does not forget, 21 and 37. no defense against, 31. chief offense against German military law, 17. DISPUTES WITH OFFICIALS, to be avoided, 43. DOCUMENTS OF IDENTITY, desirable besides pass- port, 36. DUTIES, of visiting German Americans, 47. EMBASSY, Consul must report to in certain cases, 46. EMIGRANT, may avoid orders to report for service, 20. EMIGRATION, when may occur without evil conse- quences, II of soldier, advice looking to not to be given, 45. with and without permission, 11. "unallowed" of soldiers, 12. INDEX. [ 1 16 EVIDENCE, to secure passport, 34. EXCUSE FROM MILITARY SERVICE, through bodily defect, 39. FINAL PAPERS, confer full citizenship, 3. FINE, for "unallowed" emigration, 34. FIRST DUTY, of Consul, i. "FIRST PAPERS," their definition, 3. do not confer citizenship, 3. do not entitle to protection, 3. FIVE YEARS' UNINTERRUPTED RESIDENCE, definition of, 9. GERMAN AMERICANS, when they should not re- turn to Germany, 18. visiting Germany should have certain documents, 35, 36. cases of liability or non-liability on returning to Germany, 33. procedure of, when accused, 40. general behavior in Germany, 41. must not advise soldier to emigrate, 45. must conform to local regulations, 46. duties of visiting, 47. rights and privileges of visiting, 47. summary of advice to, 53. should not depend upon amnesty, 55. should inquire into their case before visiting Ger- many, ss. appreciation of their citizenship, 56. GERMAN CONSUL, may certify excuse for disobey- ing summons, 20. GERMAN EMPEROR, danger in disrespectful refer- ence to, 43. 1 17] INDEX. GERMAN INSTITUTION, criticism of to be avoided, 42. GERMAN LAW, does not forget desertion, 21. GERMAN STATES, the treaties under which they come, 54. HESSE, naturalization treaty with, 9, 54. provisions regarding liability to military law, 14. IDENTIFICATION, of citizens through passport, 5. of citizen through naturalization papers, 5. desirable through other documents besides pass- port, 36. required for passport, 34. INFRACTIONS OF MILITARY LAW, Germany de- cides, 12. IMMUNITY, not given by treaty for offenses prior to emigration, 28. for certain offenses not given by passport, 35. INTERVENTION BY CONSUL, when may occur, 50. JUDGMENT, rendered, may be cancelled by pardon, 29. cancelled in Baden by proof of citizenship, 29. outlawed, 29. LAW REGARDING DESERTION, 17. LEAVING WITHOUT DESERTION, 18. LEGAL DEFINITION of military offenses, 28. LIABILITY TO SERVICE through loss of citizenship, 22. LIABILITY OR NON-LIABILITY to the German military law of returning Germans, twelve pos- sible cases, 33. to German military law explained, 19. LOCAL REGULATIONS, visiting citizens must con- form to, 46. INDEX. [ 1 18 LOSS OF POSITION, excuse for avoiding military summons, 20. MILITARY CASES and civil law, 27. MILITARY DUTY, when a German is liable, 11. when summons to, confers liability, 11. MILITARY LAW, excepts desertion from non-liability, 16. Germany decides infractions of, 12. no concern with minor children of naturalized citizens, 16. non-liability, 13. not retroactive, 12. offenses against in Germany, 10. offenses against most serious when serving under flag, 24. provisions of Hesse regarding, 14. punishments under, 30. MILITARY OFFENSES, may be outlawed, 25, 32. judged by two courts, 26. legal definition of, 28. MILITARY ORGANIZATIONS, must not be men- tioned disrespectfully, 44. MILITARY REGULATIONS regarding desertion, 17. MILITARY SERVICE, excuse from through defect, 39- MILITARY SUMMONS, when may be avoided, 20. MINOR CHILDREN of naturalized parents are citi- zens, 4. NATURALIZATION PAPERS as means of identifica- tion, S. NATURALIZATION, treaty between United States and North German Union, 6, 54. when considered by Germany to be renounced, 6. treaty with Baden, 7, 54. treaty with Bavaria, 7, 54. treaty with Hesse, 9, S4- treaty with Wurttemberg, 9, 54. NATURALIZED CITIZENS, same rights as native, 5- NON-LIABILITY to military law, 13. NORTH GERMAN UNION, naturalization treaty with, 6, 54- OFFENSES, against German military law, 10. against military law most dangerous when with flag, 24. chief, except treason, is desertion, 17. military, judged by two courts, 26. technical, after emigration, not punishable, 28. military, may be outlawed, 25. OFFICIALS, disputes with to be avoided, 43. OUTLAWRY of judgments, 29. of military oiifenses, seldom occurs, 25, 32- ORDERS TO EMIGRANTS to serve may be avoid- ed, 20. PASSPORT, as means of identification, S- gives no immunity against certain offenses, 35. good only two years, 38. how to secure, 34. may not be taken away, 40. necessity of having, 34. PENALTY for speaking disrespectfully of the Em- peror, 43. POSSIBLE CASES of returning German-Americans coming into conflict with the German military law. Twelve cases, from A to L, inclusive, 33. INDEX. [ 120 PROCEDURE OF CONSUL, whose aid is asked, 48. of a German-American accused, 40. PUNISHMENT, of unallowed emigration, 28, 29. under the military law, 30, 37. RENEWAL OF TWO YEARS' RESIDENCE, no right to, 23. of passport, 38. RESERVES, members of liable for disobeying mili- tary summons, 12. RESIDENCE for two years in Germany may lose citi- zenship, 9. in the United States for five years necessary to citizenship, 3. two years' restriction of, refers only to native state, 16. RETURN TO GERMANY, when dangerous, 18. RETURNING GERMANS should be provided with certain documents, 35, 36. RIGHTS AND PRIVILEGES of German-Americans in Germany, 47. SAILORS, may receive financial aid from Consul, 52. SECOND PAPERS, the evidence of complete citizen- ship, 3. SERVICE, not required above age of 31, in peace, 15. SUMMARY advice to German-Americans in Germany, S3- SUMMONS to military service, II, 12. STUDENTS, exempt from loss of citizenship, 9. TECHNICAL OFFENSES, after emigration, not punishable, 28. TREATIES, except for desertion, give protection, 16, 17. 31. 121 ] INDEX. provide no immunity for offenses prior to emigra- tion, 28, 31. verbatim, naturalization, 54. with Baden on naturalization, 7, 54. none covering Alsace-Lorraine, 37. verbatim with North German Union on naturali- zation, 6, 54. TWO YEARS' RESIDENCE restriction refers only to native State, 16. UNALLOWED EMIGRATION, of soldiers, 12. not necessarily desertion, 19. punishment of, 28, 29. UNIFORM MILITARY LAW in Germany, 30. WURTTEMBERG, naturalization treaty with, 9, 54. military provisions of treaty with, 54. B|3''iF'i Dl !|1 br^ tlMMnsii. djt t'Siti iiaM isl&jiK