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for the United States, leaving here B, a son eleven years of age, who has resided constantly in Prussia ; A has resided in the United States, and is now a citizen thereof; B will be 21 years of age in December next; has not yet been called upon to perform military service, and yet cannot procure from the Prussian government a permit of emigration, though he desires to go to A in the United States. B now seeks protection from this legation. Is he entitled to a passport? If not, has he any claim apon our government ?
This case is somewhat similar to that of George Edmond Sabatt, mentioned in my despatch No. 52. In Sabatt's case a passport was issued, and having received no comments thereupon, I presume the action taken was approved. In the Sabatt case the son was born in the United States, but the father and son lived abroad, and the father was not a citizen of the United States. I have the honor to be, very respectfully, your obedient servant,
JOSEPH A. WRIGHT. Hon. Lewis Cass, Secretary of State.
Mr. Wright to Mr. Cass. .
[Extract.] No. 151.]
LEGATION OF THE UNITED STATES,
Berlin, November 10, 1860. Sir: I have the honor to forward herewith a copy of the note from the minister of foreign affairs in the case of Wolfram. Also of my note urging attention to Mr. Butler's demands in behalf of Wolfram and Lissner. The prince regent has ordered the discharge of Wolfram.
I hope in a few days to receive a decision in the case of Marcus Lissner. If it is true, as alleged, that Lissner has taken an oath to serve the Crown of Prussia, I conceive that he has no claim upon the government of the United States for protection, unless fraud or duress was used in obtaining the same.
While awaiting instructions in reply to my despatch, No. 141, dated August 29, 1860, I shall not reply to the despatch of the minister of foreign affairs in the case of Wolfram.
The United States cannot countenance the suggestion of Baron Schleinitz, which forbids the naturalization of foreigners in the United States who cannot furnish a “ permit” from the country of their birth at the time of their application for naturalization.
I have the honor to be, very respectfully, your obedient servant,
JOSEPH A. WRIGHT. Hon. Lewis Cass, Secretary of State.
Mr. Wright to Baron de Schleinitz.
Berlin, October 16, 1860. Monsieur LE BARON : The undersigned desires to direct your excellency's attention to the demands for the discharge of Wolfram and Lissner, two naturalized eitizens of the United States, which have been made two months since by Mr. Butler, in order that they may be released as soon as possible, and permitted to return to their adopted country.
The undersigned now places before your excellency a copy, in English, together with one in French, of a despatch from the government of the United States, in
reference to the arrest, for military service, of Christian Ernst, by the government of Hanover. Accompanying these will be found copies of a judgment of a French court, and a part of certain corresponder.ce between the French government and the minister of the United States at Paris, relative to an adopted American citizen named Puyoon, from which it will be seen that the French government, in conformity with its laws, has ordered the prompt discharge of said person.
The example of the prompt action of the Hanoverian and Oldenburg governments, in discharging persons similarly situated, stimulated by the good understanding existing between his Majesty's government and the government of the United States, induces the undersigned to expect the immediate release of the above-named citizens, Wolfram and Lissner.
The undersigned takes this occasion to renew to your excellency the assurance of bis highest consideration.
J. A. WRIGHT, His Excellency Le BARON DE SCHLEINITZ,
Minister of Foreign Affairs.
Baron Schleinitz to Mr. Wright.
Berlin, November 5, 1860. SIR: I received the letter which you did me the honor to address to me on the 16th ultimo, to remind me of the affair of Mr. Joseph William Wolfram, naturalized citizen of the United States, to which the memorial of Mr. Butler, of the 16th of August last, had relation.
Inquiries having been made, while the incorporation of Mr. Wolfram in the Prussian army was pending, it has been proven that it was in nowise contrary to his desire that this individual was placed under its banners. Here is a statement of the facts : Born the 16th December, 1835, in the house of a manufacturer of paper, near Filchene, a town in the grand dutchy of Posen. Mr. Wolfram, without asking for a permit of emigration, left the dominions of the king, after the age of 18, to follow his father, who had settled in America. During the twenty years of his residence in the State of Ohio, where he obtained letters of naturalization, he was prosecuted in his native country for having emigrated without authorization from his government, and for having evaded serving in the army, for which he should have presented himself voluntarily in 1855. The court sentenced him, in default, to a fine of fifty crowns, or imprisonment for four weeks. In the month of June, of the present year, Mr. Wolfram returned to Prussia, provided with a passport from the Secretary of State of the United States, presented himself, of his own accord, to the provincial counsellor of the circle of Amswade, and declared to it that he bad returned from America to discharge his military obligations, and was ready to enter the service. A correspondence having then taken place between this functionary and the provincial counsellor of the circle of Czarnikan, for the purpose of establishing the last domicile of the said Wolfram, he was enrolled in 5th infantry regiment of Brundeburg, No. 48. Even if Mr. Wolfram had not presented himself spontaneously to fulfil his obligations, his enrolment in the army would not have been any the less in conformity to the legislation of the country. Wolfram had not caused himself to be formally released from the ties which attached him to Prussia ; he was in nowise authorized to evade at will the duties imposed upon bim in his quality of subject of Prussia; notably, also, that of service in the army, by causing himself to be naturalized in the United States.
The passport, which the competent American authority issued to him as a
citizen of the United States, will not, moreover, save him from his enrolment, seeing that in Prussia he had not ceased to be a Prussian subject.
Although, in these circumstances, there existed no reason for the Prussian government to release Mr. Wolfram before he had served his time, and that the protest of the legation of the United States against his enrolment was not founded in right, his royal highness the prince regent, to give to the government of the United States a fresh proof of his desire to gratify, in so far as the laws permit him to do, has, nevertheless, deigned to grant Mr. Wolfram his discharge.
The order of the cabinet, signed by his royal highness, and dated Warsaw, October 25, has already been communicated to the minister of war, so that the individual in question will be immediately freed.
The affair of Mr. Wolfram being settled, the Prussian government fully accords in opinion with that of the United States, that it would be very desirable that contests of this nature shoud be avoided in future—contests, the cause of which must be sought in the entirely differing points of view of the legislation of the two countries in regard to nationality and military obligations. They could be avoided, at least in part, if the government of the United States pleases to take note of the condition of the Prussian legislation. It would then satisfy itself that this legislation in nowise hinders emigration to other countries, and does not even attach to it onerous conditions ; that consequently Prussian subjects who procure naturalization in America, without regard to these conditions, must charge themselves, and not the legislation of their native country, with the vexative results which fall upon them.
Liberty of emigration has existed from all time in Prussia. It was proclaimed in 1794 by the civil code; defined by the ordinance of 15th September, 1818, to put it in accordance with the new military legislation ; sanctioned in this form by the law of 31st December, 1842, relative to the mode by which the quality of a Prussian subject is acquired and lost-a law of which I have the honor to transmit you a copy in this enclosure. The constitutional charter of Prussia of 31st January, 1850, stipulates expressly, in the 2d article, that the liberty of emigration cannot be restricted by the government except by the relation to the obligation to render military service. In Prussia every young man is obliged to serve in the active army; afterwards he forms part, for a series of years, of the landwehr, which, with the exceptions of some temporary service of short duration, is not called under the flag unless in time of war. Service by substitutes is not allowed either in the active force or in the landwehr. Every Prussian must serve in person. The fulfilment of military duty does not depend upon a call made by a competent authority. It is founded in law itself. Every Prussian subject who has attained the age of twenty years is obliged to present himself without any preliminary summons to the commission for the recruitment of the army. In conformity with these regulations, the law of 31st December, 1842, does not oppose emigration except in regard to persons who still belong to the active army, or those who serve as officers of the landwehr, and have full and entire liberty to emigrate so long as that force is not mustered under the banner. A certain limitation occurs only in respect to young men between 17 and 25 years of age. They are obliged, first, to produce a certificate from the commission of recruitment of the army, testifying that it is not for the purpose of evading their military obligations that they purpose to emigrate. Whoever comes to the resolution to expatriate himself
, should first ask to be released from the ties which attach him to his native land. Permission to emigrate cannot be refused in time of peace, except for the reason above mentioned. Whoever obtains such permission is exempt from every duty towards Prussia ; consequently from all obligation to serve in the army. The permit of emigration obtained by the father of a family avails also for the minor children stiil under parental control, unless exception may have been
taken expressly in regard to them. It follows that the only case excepted is where the military service has not yet been rendered. No one is forbidden to renounce his quality of a Prussian subject and procure himself to be naturalized anywhere else without being held to fulfil again any duty whatever toward his original country.
If, therefore, a Prussian become a citizen of the United States after having proved by his permit of emigration that he is no longer a subject of the King, neither he nor his male children can ever be constrained again to render military service in Prussia. Therefore, the government of the United States, by requiring that every Prussian who asks for letters of naturalization should then produce a permit of emigration, would thereby avoid any fresh contests. On the other side, every Prussian who quits his native land without having asked for and obtained a permit of emigration remains a Prussian subject, so that he and his sons are obliged to serve in the army. If for this purpose they do not present themselves in seasonable time, they are condemned by default in a fine; in case of insolvency, to imprisonment. The payment of the fine does not dispense them, nevertheless, from the obligation to do the military duty so soon as they return to Prussia. It is only in respect of the last individual that any contest can yet arise between the two governments. The Prussian is far from wishing to contest with that of the United States the right of fixing, as seems good to it, the condition of a naturalized foreigner in America ; but, on the other hand, the latter government can no more exact that Prussian legislation should regulate itself by that of the United States, than that American legislation should extend its effects beyond the Union and even into the dominions of the King.
In Prussia, Prussian law alone avails; and the King's government ought to claim the same right which it recognizes in that of the United States—that of determining by a law who should or not be regarded as a Prussian subject, and cause such laws to be enforced throughout the extent of the kingdom, without regard to what the legislation of other countries may provide on the same subject in the respect. These principles are already, in part, recognized by the American government. It admits that when a Prussian subject, whether a deserter or a refractory, becomes a citizen of the United States, he has no room to complain if, on his return to Prussia, he should be enrolled under the flag. It acknowledges that such an individual cannot claim in his quality of American citizer to be protected by the government of the United States from his enrolment in the ranks of the Prussian army. But it maintains that in every other case the Prussian government has not the right to impose military service on a citizen of the United States. But in reasoning thus the American government does not take into account the circumstances that every Prussian subject is already by law required to do military service, and that consequently one who has reached the age of twenty years is by this very fact called upon to enroll himself under the flag. Besides, the King's government cannot admit that when a Prussian subject
, contrary to the laws of his country, causes himself to be naturalized elsewhere, by declaring that he renounces his former country, such individual can exempt himself thus, in a one-sided way, and of his own motion, from his duties towards his native land. If, then, he should spontaneously return to Prussia and within the sphere of Prussian law, he can blame himself only when this law is applied to him. The undersigned desires to persuade himself that the government of the United States will not misapprehend the justness of these remarks.
Moreover, the King's government never having acted with severity in the application of the law, and
always giving weight to circumstances, does not doubt of arriving at arrangements satisfactory to both countries of the contests which may still arise. Finally, I believe it to be my duty to ask you, sir, to remark that if your government refers in this matter to judgments pronounced by the French courts, such proof is not conclusive, because by the terms of Prussian legislation the question of determining if an individual be a Prussian subject or not is not decided by the courts, but by the administrative authorities.
Reserving to myself to recur to the reclamation of the person named Marcus Lissner, I have the honor to offer you, sir, the assurance of my highest consideration.
SCHLEINITZ. MR. Wright, U. S. Minister, &c., fr.
Mr. Wright to Mr. Cass. No. 154.)
LEGATION OF THE UNITED STATES,
Berlin, December 1, 1860. Sir: I have the honor to forward herewith a copy of the communication from the Prussian government, in reply to the notes of Mr. Butler in the case of Marcus Lissner. As intimated in a former despatch, Liesner is discharged from the Prussian army. If the statements made by said communication, addressed to the undersigned, are true, the conduct of Lissner in not insisting upon his rights as an American citizen immediately upon his arrest is most reprehensible; as is also his neglect in not communicating to this legation the fact of his discharge being granted in September last. While expecting instructions froin the department in reply to certain despatches of mine, I shall not answer the accompanying communication from the minister of foreign affairs in reference to the “ vexed question” of military service.
I take pleasure in stating that at this time I know of not one case presenting any difficulty between the Prussian government and any citizen of the United States. I have the honor to be, very respectfully, your obedient servant,
JOSEPH A. WRIGHT. Hon. Lewis Cass, Secretary of State.
Berlin, November 26, 1860. SIR: The minister of war has furnished me with the information I requested of him, when I received Mr. Butler's note of the 7th of August last, in relation to Marcus Lissner, a naturalized citizen of the United States, who was put into the army on his return to Prussia, his native country, which he had quitted at the age of sixteen, without the proper authorization required by the laws.
In referring to my official communication of the 5th of this month to you, on the subject of Mr. Wolfram, I will remark that Lissner's case is exactly similar, he having gone to America without an emigrant permit, with a passport good to the 20th of March, 1855, but only allowing him to proceed to Hamburg. By settling in the United States he put himself
out of military obligations to Prussia, and on his return to his native country he was naturally conscripted into the army to perform military duty. Moreover, Mr. Lissner was so convinced of the legality of the measure, that he did not even adduce his title of American citizen as a defence.
In the mean time the affair has been settled, on other grounds, to the satisfaction of the person in question. Found unfit for military duty, on the 29th of September last he got his discharge from the commander-in-chief of the 5th