U.S. officials managed in some cases to convince the sending country to cancel the immigrant removal using the argument about youth. Three examples make this point. Charles George left Germany for the United States when he was fifteen; Gerhard Wientjes, born in Prussia, emigrated at thirteen with his parents; and Rudolph Lieffert, also born in Prussia, emigrated at the age of two.17 In all of these cases, after the Americans sent a note defending against their expulsion on the grounds of age, the German or Austro-Hungarian officials agreed to drop the cases.
German officials took a different tack in some of the other military cases involving men who emigrated well before draft age, arguing that they had the right to expel men for evasion of military service on the grounds that they were German citizens by treaty and German naturalization law. In making this argument, the Germans turned to two treaties, one from 1828 and another from 1868.18 Most important was the treaty of 1868, which set the protocols under which an immigrant could renounce his or her naturalization. According to the German interpretation of the 1868 treaty, if a German-born, naturalized U.S. citizen returned to Germany, he or she would lose American citizenship if he or she showed no intent to return to the United States. In the case of men of military age, the Germans held that the passive action of staying in one of the German states for more than two years indicated intent not to return to the United States.19 These newly made Germans then owed military service. If they did not serve, then German officials would expel them.
The majority of the military cases involved naturalized Americans, but a minority dealt with U.S.-born men who had German-born fathers. Through their use of the treaties, the Germans tried to hold U.S.-born men accountable for military service, too. A number of U.S.-born sons traveled with their families to their fathers’ country of birth in the last half of the nineteenth century. If such a family emigrated from the United States to Germany, some of the U.S.-born sons faced the choice to serve in the military or be removed. To make this argument, German officials noted that under German law, a father’s citizenship determined the nationality of his minor child. As long as children remained under parental control, they “share[d] the nationality of the father.”20 Thus, when a German father who had lived in the United States without ever becoming a U.S. citizen returned to Germany with his minor son, German authorities understood the son to be German, not American. The same principle even applied to German fathers who naturalized as American citizens. The German government held that after two years of residence in Germany the father had renounced his U.S. citizenship and renaturalized as a German. By extension, the son, too, was German and therefore obligated to serve in the military.21
Where German and Austro-Hungarian authorities turned to their interpretations of treaties to require military service of U.S. citizens, U.S. authorities made three key arguments to protect naturalized Americans and people born with U.S. citizenship from expulsion.22 First, in the case of naturalized Americans, they argued that the mere fact of residence for two years did not necessarily demonstrate “intent” never to return to the United States. Some naturalized Americans stayed in Germany longer than two years, but intended to return to the United States. The State Department argued that the two-year rule misinterpreted the 1868 treaty.23 Second, the American authorities disagreed with Germany’s interpretation of the treaties, holding that the treaty of 1868 “cannot of itself convert an American citizen into a German, nor a German into an American, against his will.”24 As one American consular official argued, “[e]ven the renunciation of one citizenship does not of itself create another … [the object of the treaty was not to convert citizens but] was rather to recognize the obligation of a new citizenship which had been lawfully acquired in the other country.”25 In these two arguments, then, U.S. officials contested the way that German or Austrian authorities were unmaking American citizenship through a passive, ascriptive process.
The third argument U.S. officials drew on involved gender and youth; to U.S. consular officers, Germany was inconsistently and unjustly applying the two-year rule. The U.S. Department of State believed that Germany tended to “reconvert” only men of military age. Not women, not older men. U.S. consular officers pointed out that many other Americans maintained their U.S. citizenship even after two years of residence in Germany. Therefore, it appeared as if the issue mattered only if the person was male and of age to serve in the military.
By the 1890s, the German authorities had come around to the U.S. position on citizenship in the case of U.S.-born men. In a letter over one case, Count Paul von Hatzfeldt, the undersecretary of state in charge of Germany’s Imperial Foreign Office, acknowledged concessions in response to repeated American requests: “His Majesty’s Government has,” Hatzfeldt wrote, “after repeated consideration, and after overcoming many scruples which suggested themselves, decided to still recognize the American nationality of the sons in question of former subjects of the Empire, even, also, when their fathers have lost the citizenship acquired in the United States.” Hatzfeldt noted that agreeing to the American position went against the citizenship laws of the rest of Germany. It agreed to recognize the American citizenship of U.S.-born sons “in order … to pave the way for an amicable solution of the existing difficulties.”26
As it turned out, this concession did not resolve all of the military cases. Germany articulated additional grounds that demanded military service of U.S.-born men, turning now to domestic (or national) law. Under German law, one official explained, “[f]ormer subjects of the Empire … are, in this case, not dispensed from military duty in Germany.”27 German officials maintained that even if U.S.-born sons of German citizens were U.S. citizens, while living in Germany, they enjoyed the protections and benefits provided by the state. Such a person was obligated to return the favor by naturalizing as a German and serving in the military. If he were unwilling to do so, German authorities could execute an order of expulsion. As a result, a U.S. consular officer explained, U.S. citizens of draft age were being “expelled from Germany on abrupt notice, at the pleasure of the authorities, under the alternative of becoming German subjects.”28
In response, U.S. consular officials argued that treaties of commerce overrode the demands of military service dictated through national law. According to the 1828 treaty between Prussia and the United States, American officials pointed out, U.S. citizens abroad enjoyed the liberty “to sojourn and reside in all parts whatsoever of said territories, in order to attend to their affairs; and they shall enjoy to that effect the same security and protection as natives of the country wherein they reside.”29 Consular officials argued that this right was being undermined by the German authorities’ treatment of young, naturalized or native-born American men. According to one U.S. consular officer, “the contention of the German Government, that such sons [U.S.-born citizens] may be expelled from Germany on abrupt notice, at the pleasure of the authorities, under the alternative of becoming German subjects is tantamount to claiming the right to expel any citizen of the United States.” The German claim that “‘international principles permit the refusal to such persons of sojourn in Germany,’ in the interest of public order,… does not apply to any and every native born American citizen of military age who, for purposes of business, study, or pleasure, may take up a peace-able abode in Germany.”30 One U.S. consular officer further noted that the United States “learns with regret that the Imperial Government regards itself as justified by international principles in refusing the sojourn in Germany of these native born American citizens, although they are, as such, obedient to the laws and ordinances there prevailing.… This refusal of the right of peaceful sojourn, therefore, seems to the American Government to be in contravention of the spirit and even the letter of other treaties.”31 U.S. diplomats, therefore, protested the ways a foreign state’s domestic law was overriding an international treaty.
In their appeals, the U.S. consular officers used diplomatic interventions similar to ones Chinese diplomats made on behalf of Chinese immigrants in the United States. Chinese officials had appealed the ways that U.S. immigration officials were using national law to undermine an international treaty. After a raid in Denver in 1897, for example, Wu Ting-Fang of the Chinese legation in Washington wrote to the U.S State Department, stating that raid was “contrary both to the spirit and letter of the Treaties solemnly entered into between