United States v. Herberger

• Decision Date: 02 April 1921
• Docket Number: 167.
• Court: U.S. District Court — Western District of Washington
• Parties: UNITED STATES v. HERBERGER.

272 F. 278

UNITED STATES v. HERBERGER.

No. 167.

United States District Court, W.D. Washington, Northern Division.

April 2, 1921

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 ...