Opinion
Ben L. Moore, Sp. Asst. Atty. Gen., of Seattle, Wash.
Smith, Chester & Brown, of Seattle, Wash., for defendant.
CUSHMAN, District Judge.
Plaintiff sues for the vacation of the order for defendant's naturalization and that the certificate of naturalization issued to him in Seattle, in 1912, be revoked and canceled. The allegation of the complaint is:
'That, contrary to the spirit and letter of the naturalization laws of the United States, the said respondent, Paul Herberger, being the petitioner in the aforesaid proceeding for naturalization, for the purpose of becoming naturalized and admitted as a citizen of the United States of America, did willfully, knowingly, fraudulently, and illegally procure the entry of the aforesaid order of the court admitting him to citizenship, and the said certificate of citizenship in this, to wit:
'(a) That the said petition for naturalization of the said Paul Herberger, and more particularly the seventh paragraph thereof, was untrue, false, and fraudulent, in that the said Paul Herberger was then and there not attached to the principles of the Constitution of the United States, and that it was not then and there his intention to renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly to William II, german emperor, of whom he was at that time a subject; that when the said Paul Herberger signed and swore to his said petition for naturalization, particular reference being had to the seventh paragraph thereof, as aforesaid, he, the said Paul Herberger, did not make, sign, and swear to the same in good faith, but, on the contrary, did then and there fraudulently and illegally make, sign, and swear to said petition with the mental reservation to the effect that he, the said Paul Herberger, was then not attached to the principles of the Constitution of the United States; that it was then not his intention to renounce absolutely and forever all allegiance to any foreign prince, potentate, state, or sovereignty, and particularly to William II, German emperor, of whom he was at that time a subject.
'(b) For the purpose of becoming admitted to citizenship, the said Paul Herberger did falsely, fraudulently, and illegally make his declaration on oath in open court, as hereinabove mentioned, with the fraudulent mental reservation then and there to the effect that he, the said Paul Herberger, would not support the Constitution of the United States, and that he did not absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly to William II, German emperor, of whom he was a subject, and that he would not support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and that he would not bear true faith and allegiance to the United States.'
Defendant denies the foregoing allegations, and affirmatively realleges, in substance, the statements in paragraph VII, of his petition of naturalization, and avers that, during the late war, he volunteered on two occasions to join the United States navy and fight against Germany.
The following is the substance of the pertinent portions of the evidence in the cause:
Defendant admits writing, in September, 1917, to his sister, then in Germany, a letter of which the following is a translation from the German in which it was written:
'King Cove, Alaska, September 12, 1917.
'My Dear Guschi: After a long time I received at last a sign of life again from you; i.e., the letter which Mr. Brusowitz sent me. In the same mail four letters were returned by the way of Manila, with the notation 'Dead Letter.' Several of them had been sent from Manila in December; one was for Mi and Li; another for Mrs. Abecassis; all were Christmas letters. It gives me pleasure that we have an opportunity again to correspond. Mr. Nelsen, a former officer in my department, has apparently not received the letters which I sent to him for you, because he would have forwarded them to you. He is now and has been for a considerable time employed in a bank at Copenhagen, and he always was sensible. The censor has probably held up the letters addressed to him. I had informed Nelsen that I had been called away from the Philippine Islands and had asked him to notify you.
'On the 5th of February I suddenly received an order to embark immediately for the United States and to report in person in Washington after my arrival. On the 15th I left Manila on the transport; the German consul and his secretary were also on board; they were on their way to Shanghai, but the Japanese in Nagasaki did not let them through, therefore both had to make the trip to Honolulu, where they could go on shore. From there they were sent back to Manila per transport, a h . . . of a long trip.
'I had an agreeable trip; was in San Francisco three days, and arrived in Washington on the 26th of March. They asked me a few questions of conscience, and gave me a raise in wages. During three weeks I was busy in the office in Washington, and was then sent back to Seattle to take charge of getting equipment for an expedition to Alaska, which lasted until about July 12th. We left Seattle and went direct to King Cove where we live on shore ever since. The weather is too bad to allow one to take measurements (charts); it rains continually and the only thing we can do is to get our ships ready. The whole thing was nothing but a useless expenditure of money. We left Seattle far too late to be able to do any work up here. Towards the beginning of next month we will return to Seattle for the winter.
'Do you know, the whole story is a real joke. The old fat belly of a captain, with whom I was, did not want me on board. He was afraid that I would run away with the ship, or do something else; therefore he telegraphed to W. and asked for my recall. They thought that something serious was the matter, and let him have his way. Now they have notified me that they will send me out again whenever it is agreeable to me. I shall accept it, of course, if it be only to make the fat fellow sore. He'll make eyes when he sees me again, and some of those gentlemen, who thought that I was going to be 'cashed in' and interned, surely have wondered when they heard of my raise of wages.
'I cannot write you anything of the war and the feeling here, because, if I did, the censor would keep the letter as a souvenir. This much I can tell you, that this famous liberty stuff here does not amount to much. Over there in Germany we had much more liberty than we have here; militarism is absolute trump here. The soldiers can do absolutely what they wish; they are always right. Hardly a day passes that they do not offend and menace civilization. One can make no remarks about the present President, or about a former President; the most unbelievable punishments are given. Lese majeste is nothing compared to the sentences imposed for offense of the President or disrespect of the flag in the U.S. The people are fully crazy in their hurrah patriotism.
'It is indeed ridiculous what kind of parades tramp through the city streets the whole dear long day; Liberty Bond drive, Red Cross drive, recruiting drive, and everything with the usual American slam bang. Veritable circus parades--the aim sanctifies the means; the most undignified things are good enough, as long as they bring in the money. In such things the original American spirit manifests itself very effectively. I only fear that the people will wake up sooner or later, and then a horrible revolution will take place. The whole West is in a state of excitement. Never in the history of the world has a people been driven into war more lightheadedly than these Yankees. The dear people are so stupid that the papers, which are influenced, of course, by the ammunition manufacturers and are dependent of the capitalists, can feed them anything, and the government has been driven into the war, because the leaders in Washington mistook the voice of the newspaper editors for the voice of the people. Poor America. The enthusiasm for the war amounts to zero, and when the first reverses will be known and the wounded arrive, it will go below zero.
'It gives me pleasure that Ernest is still getting along nicely. The poor fellow has gone through a lot of hardships and is now an experienced warrior. Can you imagine that our Ernest could commit such cruelties as the English lies spread to the whole world? Do you believe that he would run his bayonet through small children, and eat them up without pepper and salt, like the newspapers here preach it to the people every day, and which the uneducated masses like to read. Shortly before I left Seattle, a Belgian countess gave lectures in which she told the people that she had seen with her own eyes how German soldiers threw chocolate to the hungry children, and, when the children tried to grab the chocolate, that the soldiers cut off their little hands. Now, is it not too ridiculous? But the dear people here believe all those things and want to hear more cruelties. I believe that the dear countess has a good imagination, and after all the world wants to be deceived. The main thing, of course, is that they get the money. The whole slander does not arouse my ire any more; it is funny, and it amuses me.
'Little Mi is really on the road to become a celebrity. She is terribly selfish, and, if her voice holds out, she will make something of herself. I haven't hear anything from Mi and Li for an eternity. It seems that Otto is well occupied again (does again good business). Li said something to that effect in the last letter I received from her. I shall inclose you the Christmas letter; perhaps you will receive both letters.
'Good-night for to-day; there is a h . . . of a cold here. Regards to brothers and sisters; also all our friends in Hamburg. To yourself good luck and sincere greetings.
'Your
Paul, '202 Burke Bldg., Seattle.'
The defendant has made one or two immaterial corrections in the translation.
John Wyer, chief engineer on the Coast Guard Romblon, at Manila, a citizen of the United States, 52 years of age, testified that in 1916 and 1917 he was first engineer on the steamer Pathfinder; that the defendant, Herberger, was on the Pathfinder while the witness was with her from February, 1916, to February, 1917. He further testified that Herberger, in his opinion, was on board all of that time; that he might have been sent ashore two or three weeks, but nine out of ten times he was on board; that he had heard him say many things; that he knew that Herberger was very much against the United States of the part she took during the war; that is, always running down President Wilson, because he did not stop the supply of provisions to France and England; that he heard him at another time, while they were talking about emblems, say that the eagle is a cowardly bird, and that when they were in Alaska on the Patterson, he saw all the other birds put it over the eagle; that they had another conversation there one day; that they were talking about the Civil War, and he said that, if any of the states wished to withdraw from the Union, he was in favor of it, and would be the first one to go to that state; that the witness said that the State Department ought to be informed of that remark; that Herberger said he had a mosquito net sent to him from Germany, and also said he would always have all his clothes sent from Germany, if it could be arranged; that the witness asked him why he did not go back and live in Germany, and he said that the only thing that kept him in this country, the United States, was the good wages he was receiving; he also claimed that anything made in Germany was far better than the same article made in the United States; that he also heard Paul Herberger run down the Monroe Doctrine, make all kinds of fun and laugh at it as a silly law; that he took these statements to have been made seriously; that he also heard Herberger glorify in the torpedoing of the Lusitania; that the witness asked him one day if he had no sympathy for the poor women, men, and children that were drowned in that ship, and he said, 'No,' that they had no business in going on that ship; that Herberger was a citizen of the United States all this time; that he does not think they ever had a talk about it personally; that they never had anything to say or talk in the state room; that it was always a public, general conversation; that he could say in a general way that Herberger said that the German government was far ahead of the United States government in every way; that he always kept it above the United States; that he heard Herberger say that their colleges, their government, and their institutions are above our system of government; that their machinery, or anything that was made there, was ahead of anything made in the United States, and that it will last longer and better; that he always degraded our government, and that he said Germany took care of their workmen in old age pensions; that is, that men about 65 or 70 years old receive $3 or $4 a week, and that we had nothing like that; that one morning, around 1 a.m., he was standing on deck of the Pathfinder talking to the wireless operator, whose name was Anderson, when an English destroyer came from the stern of the port side, and threw its flash light on the stern of the Pathfinder, kept it there a while, then along the deck, put it on the bridge, kept it there a while, and went away; that Capt. Denison was standing on the port side of the bridge, and Herberger also was standing on the bridge; that next morning, in the ward room, when they were talking about the affair, Herberger said that, if he had been on the bridge alone, he could have rammed that destroyer.
On cross-examination, Wyer further testified:
'Q. Is it not also true that in such discussions (on the labor question) you advocated or argued that the wealth of the rich should be confiscated, that employers should be harshly dealt with, and that strike breakers should be destroyed? A. No; I would like to see them chastised; I would like to see them give up some of their riches, but not in Bolsheviki style; no. * * *
'Q. And is it not further true that as a result of those arguments and discussions a feeling of animosity or prejudice was created in your mind against the respondent? A. No; I never had any prejudice against the man, one way or another. I knew he was a German, and was always talking about the German affairs, especially the sinking of the Lusitania, and it was that which kept me distant from him. * * *
'Q. Is it not true that, on account of the feeling existing between respondent and yourself, he refrained at all times from entering into a discussion of any of the matters inquired about directly with you? A. Yes, sir; he never had any personal discussion with me, and as a matter of fact all his utterances herein referred to were made invariably in the ward room.'
After the defendant learned of Wyer's giving information to the authorities in this matter, he wrote him the following letter: 'My Dear Mr. Wyer: To-day I received a set of 38 questions, which will be forwarded to you in the P.I., to be answered truthfully by you, let us hope. From this I see that you, of all men, are the man denouncing me. I would have guessed the Doc, but never an Irishman. Well, we are learning something new every day. You know my opinion about denouncers, and if I would be accused of peddling anything discussed in the ward room to outsiders, I would consider myself a skunk for lifetime, you may consider yourself a 100% American. Opinions differ you know. But you are not doing this for patriotic reasons; it is a cheap revenge you seek, very manly, I must say, and Irish. I always thought you were a green Irishman, but I must have been color blind; it must be yellow. I will have a good look at you the next time I will meet you.
'But the purpose of this letter is something quite different. You must know it has always been the custom of the lawyer of the defense to attack the veracity of the witnesses of the prosecution, and so he asked me if I know anything in your disfavor. I mentioned impenetrable stupidity. He said that was an affliction, and could not be counted upon. Then, your ability for sopping up liquid fire and beer; but I did not want that mentioned, because I believe in personal liberty, and don't want to get personal, even if you started this war. But then I remembered how the Doc, called you once at the dinner table, you damned opium smuggler. And then I remembered how you have related to us how for years you had smuggled opium from British Columbia to Frisco, and how finally how your mess boy got caught with several cans of opium in front of your mother's house, and you escaped to Mexico, where you had to stay for a long time, and how it cost you $2,000 to bribe somebody to get the thing quashed. Gee whiz, man, you had a narrow escape from jail. You see I had to tell this to my lawyer, much as I hated to and you will have to answer a few questions. The lawyer thought it good to do so, but I do not like the idea, and I beg your pardon if it should annoy you.
'You always disliked me, because I did not believe in your radical views concerning labor questions. You always wanted all capitalists and strike breakers killed, while I had more liberal views. There is one thing we agreed on, that the English needed a good thrashing, and I remember how you always wished that all the English ships may be sunk. Well, the war is over; but I have still a lovely fight ahead of me, thank you. However it will turn out, I am enjoying it immensely and hope to see you again some day in good health.
'Be sure there is no hate or vindictiveness in my heart for you, and I pray that the Lord may keep you in your bullet proof ignorance forever and ever.
'Sincerely,
Paul Herberger.'
In September, 1918, Herberger was questioned at Seattle by Lieutenant Swale, of the Military Intelligence Service, and made the following statements concerning the foregoing letter written by the defendant to his sister:
That he was born June 28, 1875, at Saar Louis, Lorraine, Germany; that he was 43 years old; that his father was German, Heinrich Valerius Ludwig Herberger; that his mother was Augusta Engres, French; that both were dead. That he had two brothers-- Otto Herberger, about 54 years of age, a civil engineer in Munich; that he had had no news about him for two years; that he had a wife and two children, two girls, Millie and Louisa, aged 22 and 24. That his other brother was Ernest, 35 years old, a lieutenant of infantry in the German army; that he did not know where he was then, as he had not heard from him in two years. That he had five sisters-- Paula, 50 years old; Anna, 48 years old; Augusta, 40 years, living in Hamburg; Clara, 32 years old; Martha, 28 years old, who is married to a Capt. Walter, German infantry, but has no children. Martha is the only married sister. That he came to the United States in 1906 on the steamship Amerika, landing in New York in June or July, 1906; that prior to that time he had been first officer on ships out of New York for two years owned by the United Fruit Company; that before that he was with Anderson, a Hamburg shipowner, and was working as first and second officer on some of his vessels; that from 1904 to 1906 they were shipping goods to the Orient during the Russo-Japanese war; that during 1904 he was on the Spanish-Italian coast for the Stomann line; that in 1902-1904 he was on the East and West African coasts for the Woermann line; that in 1901 he was in the German navy for nine years-- the surveying department; that he joined the navy when he left high school; that in 1906-1908 he was away from New York; that in 1908 he came over here, and was on ships from here to Russia; that in 1910 he was on the Burnside as quartermaster; that, in order to get his citizenship papers, he had to do that; that the next summer he was quartermaster in the Coast and Geodetic Survey; that the next year he became an officer in the Coast Survey; that in 1911 to 1917 he was in this Coast Survey; that in December, 1917, he left and worked in Seattle; that from December to March he did nothing; that he worked at Skinner & Eddy's then for one month; that in April 13, 1918, he joined the ship he was then on, the steamship Justine; that he remembered writing the letter to his sister Augusta from King Cove, Alaska, in September, 1917.
'Q. (after reading letter to witness). Do you subscribe to those sentiments now-- those sentiments you wrote to your sister? A. No; no. I have changed a good deal. This was before the war. Of course, the letter was written after the war; but her letter came before the war.
'Q. This letter you wrote her? A. That was referring to those parades when they had the Liberty Bond drive.
'Q. This letter was written nearly six months after the United States was in the war. A. Yes.
'Q. Those were your sentiments at that time? A. At that time, I felt that way.
'Q. And you say you have changed your mind now? A. Yes; but I took mostly the newspaper word, because I myself did not know anything about it. * * *
'Q. You have a sister in Hamburg? A. Yes.
'Q. Which one is that? A. Gussie.
'Q. Do you remember in a letter to her making this statement: 'If you did not have to reckon with America's friendship, the submarines would have long since brought England to her knees through hunger?' A. If it is in the letter.
'Q. You remember writing those statements? A. Yes.
'Q. And you remember writing, 'It is hoped that some day Germany may repay America like for like?' A. Very likely I wrote it. Of course, since then I have volunteered to join the navy, and the Shipping Board, and all that. I was rejected. * * *
'Q. What are your sentiments right now on the war question? A. I am wholly American; that is all I can say.
'Q. Who do you want to win? A. I hope the Americans win, and settle this question for good. Of course, I have sympathies for my brothers and sisters; but that is all. I asked them to come and settle over here after the war.
'Q. What piece of information caused you to switch from the sentiments in this letter written September, 1917, to the frame of mind you are now in? A. I saw that the people here are all behind it; at that time some newspapers were for it and some against it. All these I.W.W. uprisings here were considered by some of the newspapers as sentiments of the people. I was judging by the newspapers. * * *
'Q. Do you want England and France and the United States to whip Germany? A. Sure; since I am an American citizen. It is my home here. I was asked this question in Washington, D.C. They asked me, 'Will you go to France and fight in the trenches against Germany?' That is the head or my department there asking me. I said, 'I certainly will.'
'Q. Did they know about this letter then? A. No; that is before this letter. I said, 'I will obey orders.' 'As long as my oath of allegiance is good, I will fight for this country.'
'Q. Yet after that time you wrote a letter in which you said: 'It is hoped that some day Germany may repay America like with like?' A. Yes; that is on the ammunition question. 'Q. And 'If you did not have to reckon with America's friendship, the submarines would have long ago brought England to her knees through hunger. It is hoped some day Germany will repay America like with like.' As I say, you entertained that sentiment and had written it after you said in Washington you were willing to go and fight? A. Yes.'
The defendant Herberger was further questioned the same month at Seattle by Mr. John Speed Smith, the Chief Examiner of the United States Bureau of Naturalization, at Seattle, as follows:
'Q. On what date did you first arrive in the United States? A. In June or July, 1906. * * *
'Q. How long did you remain in New York after arriving there? A. For two years to 1908. * * *
'Q. What did you do while you resided in New York? A. I sailed on ships from New York to West India. * * *
'Q. How much of the time did you spend in New York, about approximately each year? A. I was home every 12 days. * * *
'Q. Where did you go when you left New York in May, 1908? A. I was here in Seattle in June-- in June, 1908. * * *
'Q. Go back to your residence in New York, and I will ask you under what flag did the United Fruit Company vessels sail? A. The German flag. * * *
'Q. And those vessels were all vessels of Germany, sailing under the German flag? A. Under the German flag, but owned by the United Fruit Company, an American company.
'Q. Were all of the stockholders American? A. I don't know. Some of the ships were English, some Norwegian, some Swedish, and four American. * * *
'Q. Now, during the time you resided here in Seattle, from about the middle of June, 1910, up to May or June, 1908-- I mean from 1908 to 1910-- what did you do here, Mr. Herberger? A. I was on one ship here as first officer, a ship sailing from here.
'Q. What kind of a ship was it? A. Passenger ship running from here to Panama.
'Q. American or German? A. German.'
Herberger further stated that he left Seattle in May or June, 1910, and went to Montana, where he worked on a ranch for a time; that he returned to New York in November, 1910, where he drove a taxicab until January, 1911, and further:
'Q. When you left New York in January, 1911, where did you go? A. On the Standard Oil steamer Sirius.
'Q. You sailed on that vessel in what capacity? A. A sailor.
'Q. Just an ordinary sailor? A. Yes.
'Q. To what point? A. To Rotterdam.
'Q. Arriving there about when? A. Took 14 days.
'Q. What flag did that vessel fly? A. German flag.'
After one round trip to Rotterdam, Herberger returned to Seattle in April or May, 1911. He then went to Alaska and became quartermaster on the Yukon, in the service of the Coast and Geodetic Survey. He returned to Seattle in October or November, 1911, and then became quartermaster on the Burnside for the winter. In the summer of 1912, he again went on the Yukon as ship's writer, after which he returned to Seattle. About Christmas, 1912, he left Seattle for Honolulu on the Coast Survey boat Patterson, returning on such vessel to Seattle in March or April, 1913. He was then transferred to the steamer Yukon in Alaska, where he remained until the fall of 1913, when he was transferred to the Patterson, upon which he went to the Hawaiian Islands, returning to Seattle in May, 1914. He again went to Alaska, and came back to Seattle in 1915, on the Patterson. In December, 1915, he was ordered to the Philippines, where he was employed as mate on the Pathfinder, in the same service, from February, 1916, to February, 1917. He then returned to continental United States, arriving in San Francisco in March, 1917, was ordered to Washington, D.C., and returned to Seattle in April, 1917. In July, 1917, he returned to the Yukon in Alaskan waters, where he remained until December, when he resigned and returned to Seattle, where he worked in a shipyard, since which time he has been employed upon merchant vessels in the Pacific Ocean as chief officer.
He first made his declaration to become a citizen in 1908, obtaining his certificate of naturalization in the spring of 1912. He had never been arrested or charged with any crime. He never has married. He further testified in response to questions by Mr. Smith:
That he had read and believed in the principles of the Constitution of the United States; believed in its form of government at the time of such examination and at the time of securing his certificate of naturalization.
That he had not at any time indorsed, but was always against, the action of Germany in violating the neutrality of Belgium, because his brother and two sisters lived in Belgium.
That he did not indorse the sinking of the Lusitania, or the sinking of any merchant vessel without warning.
That he had never had any sympathy for the Imperial German government in the war, but sympathized with his relatives who suffered by it; that he had gradually, as these things came out, come to realize that Germany had started and was responsible for the war.
That he did not believe that America was justified in going into the war at first, because certain papers had stated that it was all a Wall Street machination, but that, at the time of the examination, he believed America was justified.
That he had always approved of the war measures of this country adopted to prosecute the war; had tried to enlist in the Navy, also the Shipping Board, and go through the war zone; had purchased $100 worth of war savings stamps when they came out and an additional $400 three months previous to the examination.
That he had purchased $940 worth of shares in some company, and so was not able to buy any Liberty Bonds.
That he believed it his duty as a citizen to assist the government in every way; that he had no friends, was a quiet man, kept to himself, and had very little to do with other people, but that he had talked with young men favoring conscription and asked them to join the army and navy; that he was quiet by nature, and not because of his German origin, or because he did not want to help the government.
That he had supported the Red Cross and contributed to it; that he had not criticised the government, nor the Red Cross, but that he was not in favor of street parades, because he was opposed to anything of a public nature.
That in general he always stuck up for the government and was proud to be a citizen; that he always acknowledged that when there was an occasion.
That he had never defended the Kaiser or the German government in the war; that he was willing to put on the uniform of an American soldier and go to France to fight Germany; that he had not volunteered in the army, but had in the navy.
That he had a brother in the German army, but would unhesitatingly fight for this country; would like to see the war won by the Allies and the autocratic government of Germany blotted out. That he had no sympathy with what was going on over in Germany in this war, except his family; that he had asked his sister to come over when the war broke out; that he had not been in communication with the other members of his family.
That he had never seen Dr. Zittleman, the German consul at Manila, before he met him on the trip from Manila; had never called at his office; nor had he called upon any other German official after the breaking out of the war in 1914, up to the time this country got into the war.
That, while he was in Washington, D.C., he never called at the German Embassy; did not know Johannes Bernstoff, the German Ambassador, nor Franz von Papen, the Austrian consul general, nor Capt. Boy-Ed; that since coming to the United States he had had no connection with any German official, either in the United States or back in Germany.
That he had not sent any information back to Germany through any channels with reference to this war or what was going on.
That his sister's letter was written in December, 1916, and in it she complained bitterly of America furnishing ammunition to France and England, and said, 'Treacherous America, getting ammunition to France and England;' that he read this at the mess table to the other officers at King Cove, Alaska; that these officers-- Mr. Ela and Mr. Stewart, commander and deck officer of the Yukon-- and himself laughed at the letter.
That he did not then, nor at the time of the examination, think America was treacherous towards Germany for selling ammunition to the Allies; that it was legal business, and she did not violate any neutrality or international law in doing so.
He offered the following explanations of the various statements contained in his letter to his sister:
'This much I can tell you, that this famous liberty stuff here does not amount to much. ' That is on account of liberty-- in previous letters when we were talking about America-- that is the liberty you have; that is, drinking on Sundays, or playing cards, or taking your sweetheart from one street to another, or smoking cigarettes in some states.
'Over there in Germany we had much more liberty than we have here. * * * Militarism is absolute trump here. ' Shortly before I left for Alaska, men in uniform broke into the headquarters of a political party and wrecked this. Another time they broke up the printing plant which belongs to another political party. And soldiers forced civilians to kneel down in the mud and kiss the flag.
'The soldiers can do absolutely what they wish; they are always right. ' They could break in and break up a printing plant and are not caught, and the other case where they broke up political headquarters and did such things.
'Hardly a day passes that they do not offend and menace civilization. ' That is exactly same two cases.
'One can make no remarks about the present President, or about a former President. The most unbelievable punishments are given. ' Shortly before I saw in the newspapers that men in Tacoma started a fight because one called President Washington a dirty name. He was fined $30. Another time in New York a man insulted the President and got I don't know how many years. That is the cases printed in the newspapers.
'The most unbelievable punishments are given. ' That the last statement had reference to a case in Chicago where a man got many years of hard work for insulting the President; that he did not approve of that, because it was such a hard sentence, enormously hard, but that he thought the man should be punished according to law.
'Lese majeste is nothing compared to the sentences imposed for offenses of the President or disrespect of the flag in the United States. ' Lese majeste is usually punished from four to six months and that was a sentence given of several years. I think Roosevelt quotes it that the man got ten years.
'The people are fully crazy in their hurrah patriotism. ' That he thought they were sometimes out of their heads with enthusiasm, emotional; that he was of a retiring nature, never made any noise and could not understand when he saw people screaming and shouting, but that the patriotism they showed was not disagreeable to him because of his German origin.
'It is indeed ridiculous what kind of parades tramp through the city streets the whole dear long day; Liberty Bond drives, Red Cross drive, recruiting drive, and everything with the usual American slam bang. Veritable circus parades-- the aim sanctifies the means; the most undignified things are good enough, as long as they bring in the money. In such things the original American spirit manifests itself very effectively. I only fear that the people will wake up sooner or later, and then a horrible revolution will take place. The whole West is in a state of excitement. Never in the history of the world has a people been driven into war more lightheartedly than these Yankees. The dear people are so stupid that the papers, which are influenced, of course, by the ammunition manufacturers and are dependent on the capitalists, can feed them anything, and the government has been driven into the war, because the leaders in Washington mistook the voice of the newspaper editors for the voice of the people. Poor America. The enthusiasm for the war amounts to zero, and when the first reverses will be known and the wounded arrive, it will go below zero. ' That this letter was written in September, 1917, when the United States had been at war with Germany since April, 1917, to comfort a girl 40 years old, who was very much worried; that it did not voice his sentiments, but was what he had read out of the newspapers; that it was not a proper way to treat an adopted country, but was written to comfort his sister, and was not intended to be read by any one else; that you would find people who would say that the country went to war on account of the newspapers, and not on account of their own feelings, because you find it in the papers; that the people put Congress where they are; that Congress represents the people and Congress declared war, but that at first it was not wholeheartedly supported by the people; that, as soon as it became law, he was supporting it.
'Can you imagine that our Ernest could commit such cruelties as the English lies spread to the whole world? Do you believe he would run a bayonet through small children and eat them up without pepper and salt, like the newspapers here preach it to the people every day, and which the uneducated masses like to read? ' That he saw a reference in the papers to the Uhlans sticking their lances through small children and carrying them on their lances, but that he did not believe that of any man; that the German soldiers had committed some offenses, but he did not believe they had bayoneted small children.
That he had not read any articles by Ambassador Gerard, or Brand Whitlock; that he would read them, and would believe any statements made over their names; that he would not believe any children in Belgium or France had their hands cut off unless it was printed over some gentleman's name.
That the witnesses in his naturalization case had known him from 1908 to the day he took out his paper; that one of them, Weber, had known him 20 years before he came to Seattle, while he was in the German navy, but he did not know the other one until he came to Seattle.
That he would ask and bring his sister to the United States in spite of what he had written her; that he did not consider his letter as 'running down' the country; that it was not right to write such a letter, but it was just meant for this one girl; that he thought, if he said something insulting, or wrote an insulting letter, it would not be insulting unless there was a third person who heard the remark or read the letter.
That, after reading the letter, the examiner would be justified in concluding that he did not entertain a very complimentary opinion of the government and people when he wrote it, but that it was written just to comfort this girl.
Defendant appeared before the court and gave oral testimony, and one witness testified to his good character and loyalty in general terms. The plaintiff relies upon defendant's conduct and statements during the war to establish defendant's want of good faith in the allegations of his petition for naturalization and oath of allegiance.
There is a well-known rule that, a state of facts once shown to exist, the same will for a reasonable time be presumed to continue, unless the contrary is shown. There is no more reason for this rule than there is for the converse; that is, that, the existence of a condition being shown, in the absence of a showing to the contrary, it will be presumed to have theretofore existed for a reasonable time. No good reason appears why such a rule should not be applied where the state of mind of an individual is in question. U.S. v. Darmer (D.C.) 249 F. 989. It appears that the defendant purchased some $500 worth of war savings stamps in May or June, 1918, prior to the commencement of his investigation by agents of the government.
By itself, defendant's criticism of the 'slam bang' methods of Americans was not essentially disloyal. There are, no doubt, honest, loyal persons of reserved and phlegmatic temperaments who consider persons who find relief for their exuberance in noisy demonstrations as hysterical, and who consider an affectation of superheated patriotism as the 'last refuge of the scoundrel.' War had existed between England and Germany for more than 2 1/2 years before the United States declared war on Germany, during which time many natives of Germany residing in the United States had worked themselves into quite a furore for Germany's success over England. This fact was bound to be shown in expressions of such residents for a time after the entry of the United States into the war.
The defendant's bitter thoughts aroused by the stories circulated of German soldiers (of whom his brother was one) frequently and wantonly killing and mutilating children is easily comprehended, and does not necessarily do him dishonor. Too easily believing such evil stories of a foe is a weakness. If one comes to believe a foe abnormal in one particular, it becomes easier to believe him abnormal in other respects. If abnormally cruel, he may be believed abnormally strong. Such beliefs are akin to fear. It is not characteristic of either the eagle or lion to sit by the fireside and let their teeth chatter over stories of sparrows' cruelty. The brave do not underestimate, nor overestimate, the foe in any particular, but rather consider him one who 'hath hands, organs, dimensions, senses, affections, passions, fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer,' as themselves.
It may be that the defendant was in many respects an industrious and useful member of society; but that is not the question to be determined. It will be noted that there are no expressions in his letter or attributed to the defendant prior to the controversy having arisen showing any anxiety for the welfare of the United States or a desire for its success in the war. Taken at their face value, these expressions indicate more interest in the welfare of Germany than that of the United States, and nothing has appeared in this case to remove or alter such showing in any substantial respect. Criticism may be the result of anxiety and fear that the best is not being done to accomplish what is desired, or criticism may be evidence of a desire to obstruct and discourage, and also of a hidden hope for the defeat of the end sought. Defendant's criticism appears to be of the latter rather than the former class. The defendant says he set himself to comfort his sister in the foregoing letter. I have looked in vain for any note of reluctance in this self-imposed task, he had set himself, of abusing his adopted country. There is too much zest and gusto in the manner in which he goes about it for the court to conclude that he had not his heart in it.
In order to constitute treason, the accused must, in general, be guilty of some act which has for its direct aim the furtherance of the hostile designs of the enemy while the state of war exists, which act indicates a want of loyalty. Charge to Grand Jury, Treason, 30 Fed.Cas. 1036, No. 18,272.
'Mere expressions of opinion indicative of sympathy with the public enemy * * * are not sufficient under the Constitution and laws to warrant a conviction of treason. ' Fed. Cas. No. 18,272, supra.
But it is not necessary that a man be shown to be guilty of treason in order to conclude from his actions and speech that he is not loyal and has not been loyal; that he is not attached to the country and its principles and devoted to its welfare.
While the defendant, Herberger, has not been shown to have done any overt act to further the hostile designs of Germany, nor counseled or advised the doing of such acts by others, his letter shows sympathy for Germany in the war, and that he himself was disloyal to this country. The defendant wrote his sister:
'I only fear that the people will wake up sooner or later, and then horrible revolution will take place. * * * Poor America. The enthusiasm for the war amounts to zero, and when the first reverses will be known and the wounded arrive, it will be below zero.'
It is true these statements alone on their face are commiserating in their nature; but, read in connection with the rest of the letter, it is clear that defendant's apprehension is not even feigned. They are ironical expressions of pretended pity born of genuine contempt. It is of a piece with the 'Thank you,' and 'hope to again see you (Wyer) in good health,' used in his letter to the latter. There is no attempt to disguise the fact that such expressions were hostile.
In another letter to his sister-- the date and entire contents of which are not shown-- he said:
'If you did not have to reckon with America's friendship, the submarines would have long since brought England to her knees through hunger.'
'It is hoped that some day Germany may repay America like with like.'
The foregoing are so obviously hostile to the United States that a far more plausible explanation than any offered is necessary to remove the conviction that the defendant wished the United States to be punished and defeated; that, by writing these things, he sought to encourage the enemies of his country. If the desire to comfort his troubled
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sister could, under any circumstances, be considered an excuse for such a thing, the least he could have done was to have asked his sister to refrain from making known in Germany the plight of the United States, which he described. Not making such a request, it is only reasonable to conclude that he was willing and intended that she should communicate the intelligence contained in his letter to her countrymen, which intelligence, if believed, was calculated to encourage the enemies of defendant's country.
In view of these expressions, and what is shown of the defendant's real feeling, it may be reasonably concluded that the seeds of such feeling were fertile within him at the time of his naturalization, and the burden shifts to defendant to show a revulsion of feeling, if any, after his naturalization. The defendant has not sustained this burden.
Loyalty or allegiance is, necessarily, of slow growth; therefore, somewhat involuntary, not fully subject to the will. Those who lightly, for temporary advantages, undertake to change their allegiance, are liable to overlook the deep-seated nature of this feeling; but the fact that not until afterwards, in times of stress, is it made manifest that the desires, suffered to lie dormant, are stronger for their native than their adopted country, although this fact may not be fully realized at the time of their naturalization, renders it none the less a legal fraud for the applicant to fail to disclose his true, although latent, feeling in such a matter.
No question has been raised as to the effect, if any, on defendant's eligibility to citizenship of his sailing out of New York on German vessels prior to his admission.
The prayer of the complaint will be granted.