THE BANCROFT TREATIES 49 Another phase of the relations between the United States and Germany, concerning which the treaty provisions were inadequate and uncertain, was that of the status of the naturalized citizen and his rights and immunities upon his return to the land of his ( birth.32 This subject was regulated by a group of treaties concluded before the unification of the empire with the separate states of Baden, Bavaria, Hesse, Wurtemburg and the North German Union. Besides differing from one another in minor respects, which caused some difficulty, these treaties left unregulated the status of the former citizens of Alsace-Lorraine. Just as it was never formally determined whether the 1828 treaty with Prussia had been extended to include the whole German Empire, so it was never formally agreed upon by both countries whether or not the naturalization treaty concluded with the North German Union, or any of the other treaties of the group, were valid for the whole empire and hence governed the status of American citizens born in Alsace-Lorraine. The final published correspondence up to the year 1910 showed the two governments taking opposite stands on the question-the German Government holding the treaties inapplicable3 to former citizens of the two provinces and ( the United States refusing to admit this stand.34 It is thus seen that throughout this period of forty years the intercourse between the two great nations, important as it was in volume of trade and in social and political relations, was never at any time adequately regulated by treaty. The only formal treaties covered subjects of less general importance, while the whole basis / of the relationship of the two countries in their commercial intercourse was rendered unstable by reason of a disagreement as to the interpretation of the older treaties and by reason of an uncertainty as to whether they were really valid.35 It was inevitable 32 For account of negotiations on this subject, see Chapter III "American Citizens of German Birth, their Rights in Germany." 33 F. R., '03, p. 443 and F. R., '06, p. 652. 34 F. R., '04, p. 319. 35 In 1904 a Compilation of Treaties in Force was prepared under a Resolution of the United States Senate. (Sen. Doc. No. 318, 58th Cong., 2nd Sess.) Under treaties in force with the German Empire only two were given, the that the relationship as a whole between the two nations should be adversely affected by these conditions. This was realized by the officials of both governments, but attempts to remedy the situation and conclude a comprehensive treaty were defeated by the opposing American and German economic protection policies.36 Consular Convention of 1876 and the Commercial Agreement of 1900. The treaties with Prussia and the several German states were listed separately under the names of Prussia, Baden, Bavaria, etc., as still in force for those states-but no statement is made as to whether or not they are in force for the Empire. 36 See Chapter IV, Commercial Relations. The conclusion of a naturalization treaty to take the place of the “Bancroft" Treaties of 1868 was apparently blocked by Germany. See Chapter III, "American Citizens of German Birth, their Rights in Germany." CHAPTER III AMERICAN CITIZENS OF GERMAN BIRTH-THEIR RIGHTS IN GERMANY THE first question of important and extended diplomatic discussion to come before the two nations after the foundation of the Empire was that of the rights of American citizens of German birth, upon their return to Germany-particularly their rights to exemption from military service. The efforts of Bancroft in behalf of these naturalized citizens resulted in the formation of a group of naturalization treaties1 with the North German Union, Bavaria, Baden, Wuerttemberg and Hesse respectively, in the year 1868. These are known as the "Bancroft treaties," and became the basis of diplomatic correspondence, lasting throughout the whole period of forty years. Shortly after their conclusion, it was evident that the treaties were, from the American standpoint unsatisfactory for the chief reasons that, as pointed out by Secretary Fish:2 "They are not coextensive with the limits of the Empire. The provisions of none of the existing treaties extend to Alsace and Lorraine, which form an integral part of the empire; and from which there has long been a large and valuable emigration to the United States, whose status deserves recognition and protection." And secondly: "They make different, and in some respects, conflicting provisions respecting the naturalized citizens." In defense of the treaties, Bancroft replied3 that the German Government was not disposed to deny to the emigrants from those 1 Sen. Doc. No. 318, 58th Cong., 2nd Sess., Vol. XXXVII. 3 F. R., '73, p. 287. two provinces (Alsace and Lorraine) the benefits of the treaty with the North German Union and that, though there were slight differences between the treaties, they were interpreted and executed alike. He explained at the same time that it would not be advisable to negotiate for a single treaty with the empire, because, being directly at the close of the Franco-Prussian war, the moment was a "most inauspicious one for bringing before the German Parliament any document exempting men of German birth from obedience to German military law." The auspicious "The moment apparently never came, for the Bancroft treaties with the five separate German States have remained in force and the long diplomatic discussions have centered in a changing interpretation of their clauses, and in the extent of their application. The treaty formed with the North German Union was the first to be concluded, and became the one chiefly used as the basis for discussions. The clauses most often brought to bear are the following: 5 ARTICLE I. "Citizens of the North German Confederation who become naturalized citizens of the United States of America, and shall have resided uninterruptedly within the United States five years, shall be held by the North German Confederation to be American citizens, and shall be treated as such." ARTICLE II. "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." ARTICLE IV. "If a German naturalized in America renews his residence in North Germany without the intent to return to America, he shall be held to have renounced his naturalization in the United States. The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country." 4 F. R., '73, p. 289. 5 M., Vol. II, p. 1298. THE BANCROFT TREATIES 53 The principle through which Bancroft was able to secure the treaties was that-endorsed by Bismarck himself-of the natural right of emigration and the prohibition of any punishment inflicted because of the act of emigration itself. Before this time the German kingdoms had not recognized the right of subjects to dissolve their allegiance to their sovereign without his consent. The Bancroft treaties have therefore been considered " a great achievement of American diplomacy which has made a breach in an old feudal principle of monarchical states." Although the United States, in the words of President Hayes,8 admitted "no distinction whatever between the rights of a native and a naturalized citizen of the United States," the policy was adhered to of investigating carefully each case of molestation, and only those protests were forwarded to the German authorities which had been found by the United States Consuls to be covered by the treaty stipulation, i. e., when the intent to return to the United States had been satisfactorily demonstrated. Germany, on the other hand, reserved the right to punish (by forced military service, imprisonment, fine or expulsion) or to release the citizen in question. As reported by the United States Minister at Berlin, J. C. B. Davis, 10 "Release from fine or arrest of returned American citizens of German birth has been granted by use of the royal prerogative of pardon. It has not been regarded as a right which can be asserted and enforced under German law by the injured party." Though Germany throughout the controversies manifested a desire to adhere to the terms of the treaty," the interpretation of those terms, and the fact of the discrepancies between the treaties signed with the separate States left room for much fluctuation of policy. As the treaty with Baden12 contained no two-year clause, former citizens of that State on their return were apt to be molested F. R., '73, p. 284. 7 House Report No. 2590, 48th Cong., 2nd Sess., p. 5. 8 F. R., '79, p. xiii. 10 F. R., '75, p. 568. 9 F. R., '84, p. 212. 11 F. R., '79, p. xiii. |