Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part I
No. 457.
Mr. Bayard
to Mr. Pendleton.
Washington, April 28, 1888.
Sir: Inclosed herewith is a copy of a report on the claim of Albert Bernhard against the Imperial German Government for arrest and imprisonment at Mülhausen, in Alsace, in 1887, on a charge of participation in a seditious conspiracy. This report has received my approval and is transmitted to you to be filed in the legation.
I am, etc.,
Claim of Albert Bernhard against the Imperial German Government for arrest and imprisonment at Mülhausen, in Alsace and Lorraine, for participation in a seditious conspiracy.
It appears by the documents in possession of the Department that Bernhard was born at Mülhausen, in Alsace, September 28, 1845. His father was a wine merchant.
In May, 1872, being then nearly twenty-seven years of age, Bernhard left his native [Page 632] country and came to the United States, landing in New York. He remained there for three days, and then went to Omaha, where he was employed as a hook-keeper until. December, 1872, when, in consequence, as it is alleged, of ill health, he removed to Saint Louis, in which city he obtained a position as salesman on the 1st of April, 1873.
On the 23d of October, 1878, he was admitted as a citizen of the United States in the circuit court of Saint Louis.
In August, 1880, he returned to Mülhausen, his native place.
A question has been raised in correspondence as to whether Bernhard originally left Alsace with an intention to expatriate himself. In a statement made on April 30, 1887, before the Imperial prosecutor at Mülhausen, he said he “ausgewandert” to America in 1872; and it has been suggested that that term signifies temporary absence and not emigration with a view to a permanent settlement in a foreign country. This interpretation of the word does not appear to be sustained; but, however this may be, it is not necessary to resort to such an inquiry.
Whatever may have been the view with which he left his home, we may concede for the purposes of this case that he left with an intention permanently to settle abroad.
As has already been stated, Bernhard returned to Mülhausen, his native place, in August, 1880. On the 13th of February, 1887, he was arrested on a charge of seditious conspiracy for alleged membership in, or connection with, an organization called the “Ligue des Patriotes,” and was detained till the 27th of the same month, in all, fourteen days. Other persons were arrested at or about the same time on the same charge.
In a letter to the Department bearing date the 8th of September last, Mr. Philip J. Joachimsen, of 45 William street, New York City, Bernhardt attorney, referring to the organization in question, says:
“The circumstances of this case as developed on the trial of Koechlin and others with whom Mr. Bernhard was in the commencement jointly proceeded against, developed that a turn, fencing, and rifle society has been formed in Alsace-Lorraine. Such societies are prima facie lawful. This society sent out circulars and solicited members. This proceeding was lawful. It was not prohibited. It was permitted to exist without objection until recently when it became ‘suspect’ that in case of war between France and Germany, in the opinion of the witness, such organization might become dangerous to Germany.”
It appears by the proceedings in the prosecution referred to, of Kochlin and others in June, 1887, that the “prima facie lawful” society above referred to was the “Ligue des Patriotes” already adverted to.
In a letter dated the 29th of September last, Mr. Joachimsen transmitted to the Department a copy of an extract from “Le Drapeau,” the official organ of the “Ligue des Patriotes,” a copy of which extract, which was a circular of the “Ligue,” was found in Bernhardt house when it was searched. In the same letter Mr. Joachimsen, in order to prove that Bernhard did not belong to the “Ligue des Patriotes,” sends a copy of the statutes of the society in which it is provided that the organization shall be composed exclusively of Frenchmen.
Remembering that in his argument of the 8th of September last, Mr. Joachimsen contends for the legality of the society which he says “sent out circulars and solicited members,” it is remarkable to find in the secret statutes referred to and inclosed with his letter of the 29th of September last, the explicit statement in the second article of the code that the object of the “Ligue” is the restoration of Alsace-Lorraine to France, and that for that purpose military and gymnastic exercises are to be cultivated by the organization. It is needless to say that the papers circulated in Alsace-Lorraine, and of which a copy was found in Mr. Bernhardt house, contained no declaration of the true object of the “Ligue.” But it is clear beyond question that the suspicions of the German authorities as to the real character and purpose of the society were well founded.
This disposes of the allegation of Bernhardt counsel in his argument of the 8th of September last that the prosecution of the persons suspected of connection with the “Ligue” was a proceeding against persons for pursuing an innocent object. It is possible that a person may have been brought into the “Ligue” without at first knowing its real purpose, but that the organization was pursuing a treasonable end is indisputable.
This brings us to a consideration of the proceedings themselves and to the question of their regularity and legality.
On this point it clearly appears by the statement of the imperial German Government as well as by copies of records which have been furnished to this Department that the proceedings against Bernhard and others for alleged complicity in the unlawful and treasonable designs of the “Ligue des Patriotes” were conducted under the supervision of the supreme court of the Empire at Leipsic, and in strict conformity with the German law.
It is a settled and necessary rule of international law that in countries where there [Page 633] is an organized administration of justice from which foreigners are not exempted, they as well as citizens are amenable to the law, and the government of the country is not to be held liable as for a tort for criminal prosecutions undertaken by the authorities bana fide under the law, although the proceedings may not result in the conviction of the persons accused. It would be impossible to administer criminal justice if any other rule prevailed; at least it would be impossible as to foreigners, who, if the rule were otherwise, would enjoy practical immunity from criminal actions. In the United States, as well as in other countries, criminal proceedings are set aside every day for some irregularity and the defendant either discharged or remanded for a new trial, which may result in his conviction or acquittal. It can not be supposed that such an irregularity would form ground for an appeal to diplomatic intervention. Hence, when it is shown that criminal proceedings were instituted by competent authority pursuant to law, they are presumed to be regular and valid and do not afford a basis for a diplomatic claim. In Bernhardt case, however, it does not appear that there was even an irregularity in the prosecution.
But Bernhardt counsel contends that his client was “treated with great rigor; denied access to his family; his correspondence interrupted,” etc. All this may be true, and it is understood that such methods of procedure are authorized by the German law and are commonly resorted to. But it does not belong to the United States either to prescribe or criticise the ordinary judicial and administrative procedure of foreign countries. On the contrary, no government would contend more strenuously than that of the United States for the amenability of foreigners to the local law; Mr. Bernhard went to Alsace of his own free will; he elected to make it his place of residence; he was not going to a strange country but was returning to his former home and to his family. Having thus voluntarily placed himself within the jurisdiction of German law, he can not complain that when he was arrested on a criminal charge he was secluded from his family and his mails interrupted and inspected, such methods of procedure being authorized by that law.
There is, however, another feature of Mr. Bernhardt case to be considered. In an instruction to Mr. Pendleton, dated the 27th of June last, the Department, referring to that case, said:
“There is, however, a serious obstacle, not heretofore noticed, to the intervention of the Department on his behalf. If a naturalized citizen of the United States of his own free will leaves his adopted country and returns to his native land, settles himself in business there in his own right and not merely as the agent for an American house, withdraws himself from all the duties of citizenship in his adopted country and voluntarily resides abroad, as a matter of choice, for such a period as reasonably leads to the inference of the animus manendi, which constitutes domicil, then he renounces his right to call on the United States to protect him against the government under whose control he had so chosen to place himself.
“In the case before us Mr. Bernhard returned in 1880 (and in less than two years after he had acquired American citizenship) to his native home at Mülhausen, where he regularly entered into business and established himself with every customary surrounding proof of an intention there to remain, in which no change is yet apparent, or if any intention to remove therefrom appears, it is to settle in France, and not in the United States.”
After this was written the Department was furnished by Bernhardt counsel with various papers which accompany his argument of the 8th of September, to which reference has already been made.
Among these papers are some letters which throw strong light on the animus with which Bernhard returned to Alsace.
It is to be observed that although he returned to his native country in 1880, there is no evidence of any subsequent assertion by him of his American citizenship till the 8th of March, 1887, when, after his arrest and discharge as above detailed, he obtained from the United States consul at Kehl a blank form of application for a passport, which he duly filled up, alleging that he intended to return to the United States in eighteen months. This was done nine days after his release.
The application was forwarded to the legation at Berlin and a passport issued. No investigation of the case was made, nor was the legation, as Mr. Pendleton states in his No. 486 of the 28th of July, 1887, informed either by Bernhard or by the consul of the actual circumstances of the case until the passport had been issued and was in Bernhardt hands, and a claim against the German Government had been lodged by him with the legation, so that its action in issuing the passport in no sense involved or implied a judgment upon the facts now disclosed.
The first of the letters above referred to bears date October 7, 1878, and was writ-ton in reply to a letter of his brother entreating him to return to Alsace. In his letter Bernhard says:
“For nearly two years they have been constantly talking to me of a return to Alsace. * * * You have not forgotten my various letters, in which I gave a plain statement of the conditions on which I would return home; well, what have you [Page 634] done? I have generally received the answer, that everything would he arranged at the proper time to my entire satisfaction! I always supposed, from your formal declarations, that our dear father was perfectly willing; in the first place, in October, 1877, that as soon as the business of the old firm should be settled up, I was to return as partner. Well, in January, 1878, a change took place; our dear Emilie got married, and a stranger took the place that was intended for me, or rather that rightfully belonged to me. When the new articles of partnership were drawn up, a special clause, it is said, designated me as a special attorney (mandataire) in case of the illness or death of our dear father. I long doubted this, but in view of your many earnest declarations, I finally believed it. At length came your famous letter of July 29, which told me that I should receive by the next mail: (1) A contract or agreement signed by our dear father; (2) An extract from the new articles of partnership, in which my name was to appear as an attorney (mandataire).
“After so many letters, and so much expectation, anxiety, annoyance, and trouble in my business, what happened?
“I received your letter of August 29, which summarily announced to me that the whole thing was broken up, and that our honored father, in a moment of anger, had ignominiously driven me from his presence!!!
“At last I received your letter of September 11: everything was then changed; the storm had been of short duration; however, another kind of tactics was then announced; I was attacked; yes, I was reproached with my lack of readiness to return home when summoned by you! I was even told that it was no evidence of filial love on my part to remain where I was without having sufficient affection to return, in a disinterested manner, to comfort my aged father.
“And yet it would have been so easy to change all that why did you not keep your promise?
“Do you think that I would ever have accepted your offers, and that I would have agreed to return if you had at the outset plainly given me to understand that I was to return unconditionally and act according to the good pleasure of our dear father? I can certainly say that no correspondence on this subject would then have passed between us.
“I know what business is and this return is a matter in which considerations of filial love must be set aside; for thus far I have not seen that you propose to supply the funds for this journey; consequently the question to be discussed is simply one of interest.
“I have not forgotten my former homeward journeys, particularly that made in July, 1867, when I gave up a good situation in Paris, on the strength of the promises that you made that I should have employment at home; what came of it? In two months I was obliged to return to the place which I had left. Why did you not then keep me at home?
“But I must be brief, for there is no need of any longer discussion. If I require guaranties, it is because I desire to protect not only my interests, but my future and that of my children. What will be the consequence if I return home disinterestedly without any guaranties?
“Our father, who is violent at times, will make a great fuss about nothing, and will drive me away, as he has already done several times. What shall I have after that?
“At my age one can no longer be content to be treated like a boy. I have lived too independent a life in America ever to be willing to put my neck in the yoke again.
“What would the filial love that you talk about have to do in such a case? Our father might long ago have acted differently with his sons, but he did not do so. Why? Probably because he did not see that he could directly advance his own interest by doing so.
“He says somewhere that he is trying to make a man of me; all right; I have never tried to do as much for him; he would not accept it.
“It is not, moreover, my business to manage his affairs; that is his business. If I came it would be only as an assistant. He need not fear, therefore, that I desire to become better acquainted with his affairs than he is himself.
“Now, my dear Emile, you do not do right. Every time that there is a difficulty between us you rudely demand your money of me. Let us see; shall I not be free, in the face of my father’s selfishness, to act as I please in regard to marriage? He cares a vast deal for my children. Why do you say that I will ‘fly’ to my aunt in Paris rather than to you? I shall require exactly the same guaranties before making another move. Business is business; that is all I know.
“I have often repeated this proverb to you, ‘A burnt child dreads the fire.’”
This correspondence reveals in the first place that the cause of Bernhardt leaving his home and coming to the United States was the difficulty he found in maintaining amicable relations with his father; and that his only objection to returning home was his uncertainty as to his ability to make such arrangement with his father as would secure satisfactory and permanent business relations. In the second place, it [Page 635] appears that during the time intervening between his declaration of intention and his naturalization he was engaged in correspondence with his family in regard to the abandonment of his residence in the United States and a return to Alsace. The refusal of Bernhard to return to Alsace unless he could settle himself permanently in business is clearly declared. The letter above quoted, was written shortly before his naturalization and shows that long anterior to that time he had been discussing terms with his father under which he could abandon his American residence and, returning to Mülhausen, become a member of the wine firm.
In a letter of the 29th of July, 1878, Bernhardt brother Emile says:
“From all these considerations (i. e., being made a partner, given a home, and being put in a position to marry again, etc.), we must conclude that a brilliant future lies before you in Alsace,” etc.
From this correspondence no other idea is derivable than that the return of Bernhard to Alsace was animo manendi.
By the treaty of naturalization with Germany, as well as by various other treaties, it is provided that a renewed residence of two years in the country of origin shall be treated as prima facie evidence of an intention permanently to remain, and consequently of a renunciation of acquired citizenship. Bernhard, when arrested, had maintained a continuous residence of seven years at the place of his origin, to which he returned in less than two years after the date of his naturalization in the United States. There is no evidence whatever that he entertained at any time during these seven years any intention to return to the United States, or even that he entertains such an intention now Indeed, it appears that he has sought employment in Paris, in the land of his original nationality.
On the whole, the case does not appear to be one in which the Department would be justified in intervening.
Respectfully submitted.
Third Assistant Secretary
Approved by the Secretary of State April 21, 1888.