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This explanation of the Ambassador is hardly borne out by the published text of his letter of August 20, 1915 to the Austrian Minister for Foreign Affairs. According to this letter, the Ambassador desired to take advantage of Mr. Archibald's contemplated visit to Vienna to recommend most warmly to the favorable consideration of the Foreign Office “proposals with respect to the preparation of disturbances in the Bethlehem Schwab's steel and munitions factory, as well as in the Middle West” and he expressed the opinion that "we could, if not entirely prevent the production of war material in Bethlehem and in the Middle West, at any rate, strongly disorganize it and hold it up for months, which, according to the statement of the German Military Attaché, is of great importance, and which amply outweighs the relatively small sacrifice of money."
The Ambassador justified his use of an American citizen with an American passport as bearer of despatches to his government on the ground that his purpose was entirely legitimate and in line with his duty and that he had no other way of privately communicating with his government. The diplomatic impropriety of employing “an American citizen protected by an American passport as a secret bearer of official despatches through the lines of the enemy of Austria-Hungary" hardly needs to be commented upon, because, if a neutral country knowingly allows its citizen or subject to carry despatches for a belligerent, and at the same time protects him with a passport which the enemies of that belligerent are asked to accept in good faith, the neutral country by the very act violates its neutrality, as its passport asks the enemy of the belligerent to accept and to protect its citizen who is knowingly engaged in an unneutral act, namely, in rendering assistance to one of the belligerents. An ambassador commits a fraud upon the neutral country, not in employing its citizen or subject to carry despatches, but in seeking to avail himself of a neutral passport, under cover of which the citizen or subject carries unneutral despatches. The very moment that the neutral ascertains the abuse of its passport it owes it to its own dignity, as well as its duty to the belligerents, to disavow the act and to refuse to have further official dealings with the ambassador who has impugned the good faith of the neutral country. This the United States did, and had Ambassador Dumba only been guilty of employing an American citizen, armed with an American passport, as a despatchbearer, passing through the lines of the enemy of Austria-Hungary, the United States would have been justified in asking his recall.
2 The text of this letter is also published in the New York Times of September 17, 1915, and appears among the Austrian and German papers found in possession of Mr. James F. J. Archibald, printed as a British Parliamentary paper, miscellaneous, No. 16, 1915. (Cd. 8012.)
The case, however, does not rest here, and in view of the gravity of the more serious offense which Dr. Dumba is charged by the Secretary of State with committing, the despatch incident can be treated as a mere matter of aggravation, not as the basis, of the recall of Dr. Dumba.
The offense with which Dr. Dumba was charged, and which his subsequent explanation failed to disprove, was the proposal to his Government “to instigate strikes in American manufacturing plants engaged in the production of munitions of war,” which Secretary Lansing characterized as a conspiracy "to cripple legitimate industries of the people of the United States and to interrupt their legitimate trade.”
The question is not so much whether Ambassador Dumba was guilty of a diplomatic impropriety, but whether the United States is sovereign within its territories, for if the official representative of Austria-Hungary in the United States claimed and was allowed to exercise the right “to cripple legitimate industries of the people of the United States and to interrupt their legitimate trade” by means of "strikes in American manufacturing plants engaged in the production of munitions of war,” it followed necessarily that Austria-Hungary would exercise acts of sovereignty within the United States which were inconsistent with the exclusive sovereignty of the Government and people of the United States within their jurisdiction. This country is very large, but it is not large enough for two sovereigns, and in this clash of sovereignty the Austrian attempt was doomed to failure.
From this standpoint, it is immaterial whether the conspiracy was to cripple legitimate or illegitimate industries of the people of the United States, or to interrupt their legitimate or illegitimate trade. Neither Austria-Hungary nor its Ambassador possessed the right to pass upon the legality of American industries or of American trade. The United States is master within its own house, and it determines for itself what its citizens may do or may not do. If the action of the American Government or of its citizens injures a foreign nation, it is the right of that nation to protest through diplomatic channels. That is what the practice of nations allows. It did not allow Ambassador Dumba in 1915, any more than it allowed Minister Genet in 1793, to turn his back on the Administration and to exercise within the United States rights and powers inconsistent with the sovereignty of the United States within the territory subject to the exclusive jurisdiction of the United States.
It makes no difference whether Ambassador Dumba merely sought to instigate strikes of his fellow-countrymen residing within the United States, because every alien within the United States owes a temporary allegiance to the United States. The allegation that Austro-Hungarians, engaged in the production of munitions of war, violated the law of Austria-Hungary, and that they were liable to punishment for their acts if they returned to Austria-Hungary, does not affect the question, because the law of the United States, not the law of Austria-Hungary, obtains in the United States, and the rightfulness or wrongfulness of the action of an Austro-Hungarian subject within the United States is to be decided solely by American law. The Austrian writ does not run in the United States. It is true that foreign governments claim and exercise the right to punish their subjects or citizens upon their return to their native jurisdictions for acts committed in foreign jurisdiction, but the citizen or subject is not liable to punishment nor to proceedings against him in the foreign country, although he may be subject to both when he returns to the jurisdiction of the home country.
It has been stated that a diplomatic agent could not pass upon the legitimacy or illegitimacy of acts committed within the United States, and in the present instance Ambassador Dumba could not allege that there was any reasonable doubt in his mind, or anybody's mind, as to the decision of the American Government that the production of munitions of war in the United States was lawful, and that their sale to any belligerent and their export from the United States was lawful. This very question had been raised by Austria-Hungary in the note of its Minister of Foreign Affairs dated June 29, 1915, and the legitimacy of each act complained of by Austria-Hungary was affirmed, in express, positive and unmistakable terms, by Secretary Lansing in his note of August 12, 1915. The attitude of the United States was therefore taken, and it was known to Ambassador Dumba before he made the proposal to his Government, contained in his note to the Minister of Foreign Affairs dated August 20, 1915.
The statement that the American Government decides whether or not a particular act can be done within its jurisdiction does not mean that the foreign government is bound to accept its decision. The foreign government protests through diplomatic channels, and if its protest is unavailing it may tax the American Government with responsibility
for the act, just as the United States taxed Great Britain with responsibility for the Alabama claims. The dispute may be referred to arbitration, or the countries may go to war if the foreign government considers it to be its interest so to do. The case, therefore, is not one without a remedy, and because Ambassador Dumba chose a remedy inconsistent with the sovereignty of the United States, his recall was asked, and the Austro-Hungarian Government complied with the request.
THE GERMAN IMPERIAL AND STATE CITIZENSHIP LAW
From time to time the press has referred to the German Imperial and State Citizenship Law of July 23, 1913, calling particular attention to the provisions thereof, which permit a German, naturalized in a foreign country, to resume his original citizenship without returning to the country whereof he was a citizen, and to the provisions enabling a German about to become naturalized in a foreign country to retain, so far as Germany is concerned, his German, notwithstanding the acquisition of foreign, citizenship.
An article by Mr. Richard W. Flournoy, entitled “Observations on the New German Law of Nationality," was printed in the American Journal of International Law, Vol. 8, pp. 477–485. In view of this fact, and in view of the further fact that the law itself is printed in the Supplement to Volume 8 of the JOURNAL, pp. 217–227, the comment on this law and its underlying purpose will be confined to $$ 13 and 25, which have aroused the interest of American publicists and the American press.
Section 13 reads:
A former German who has not taken up his residence in Germany may on application be naturalized by the State (of Germany) of which he was formerly a citizen, provided his case fulfils the requirements of Nos. 1 and 2 of paragraph 1 of 8 8; the same applies to one who is descended from a former German or has been adopted as a child of such. Prior to naturalization a report must be made to the Imperial Chancellor; if he raises objections, naturalization does not take place.!
The text of 8 8 of the law referred to in the section just quoted is as follows: 1. If he is legally competent in accordance with the laws of his former home or would be legally competent in accordance with the laws of Germany; or if the application is made by his legal representative or with the latter's consent in accordance with the second sentence of paragraph 2 of $ 7;
2. If he has led a blameless life; * * *
The reason for this section is thus stated by Delius, a German public cist, in his Reichs und Staatsangehorigkeitsgesetz, 1913:
Section 13 aims to facilitate as far as possible the reinstatement of lost members of our population as citizens again. The Federal State may not must), accordingly, renaturalize its former citizens, their descendants, etc., who have not resumed their residence in Germany. In contrast to the citizens of other countries, Germans are not in the habit, after they have established themselves abroad, of returning permanently to their homes. Reference is made especially to representatives of commerce, to members of the German communities in Palestine, to missionaries, and in general to persons who, by being especially active in the fostering of German-dom abroad, for example, in German societies, and particularly by maintaining German schools and churches, do a worthy service.
The possibility of reinstatement as citizens extends not only to persons who have no citizenship, but also to such former Germans and their descendants as have acquired a foreign citizenship. That is to say, Germans who have been naturalized in the United States and their descendants, and who have been “especially active in the fostering of German-dom abroad,” to quote Delius, may acquire German citizenship without taking up their residence in the Fatherland, as would be ordinarily required in the case of naturalization.
It is proper enough for the home country to facilitate the naturalization of former citizens or subjects, but residence for a specified time, however short, would seem a reasonable requirement; and the foreign state in which the German has been naturalized, or in which his descendants live, would seem to be entitled to know whether it was harboring a citizen of its own country who owes no allegiance to another country, or a citizen who has pledged his allegiance to a foreign state while enjoying the hospitality of his adopted country.
Section 25 reads as follows:
A German who has neither his residence nor permanent abode in Germany loses his citizenship on acquiring foreign citizenship, provided the foreign citizenship is acquired as a result of his own application therefor or the application of the husband or legal representative; but in the case of a wife or one having a legal representative, only when the conditions exist under which expatriation may be applied for according to $8 18 and 19.2
? 18. The expatriation of a married woman may be applied for only by the husband and when he is a German only simultaneously with an application for his own expatriation.
§ 19. The expatriation of a person who is under parental tutelage or guardianship may be applied for only by the legal representative and only with the consent of the German court having jurisdiction in guardianship matters. * * *