Circular.
The United States have concluded treaties regulating the rights persons who have emigrated from the dominions of one of the contracting parties, and have been naturalized in those of the other party, with the following powers: Austria and Hungary, Baden, Bavaria, Belgium, Great Britain, Hesse Darmstadt, Mexico, the North German Union, and Wurtemberg.
These treaties provide, in general, that subjects of these powers, respectively, who have become naturalized citizens of the United States, and who have resided, uninterruptedly, within the United States for five years, shall be held to be citizens of the United States, and shall be treated as such.
The treaties with Belgium and Great Britain do not require a residence of five years within the United States, but recognize citizenship where under our laws it has been acquired after a shorter period.
The exceptions to the requisition of five years’ residence, under our laws, are: 1. That of soldiers who have been honorably discharged from the armies of the United States. Such persons, being of the age of twenty-one years and upward, may be naturalized without any previous declaration of intention to become citizens, and without being required to prove more than one year’s residence in the United States previous to their application. (See section 21 of act of Congress of July 17, 1862, 12 Statutes at Large, page 597.) There is an erroneous impression prevalent, to some extent, that the mere facts of service and discharge operate as a naturalization, whereas they are only part of the evidence on which naturalization may be granted. 2. The children of persons duly naturalized, being under twenty-one years of age at the time of [Page 25] their parents being so naturalized, are, if dwelling within the United States, considered as citizens. (Act of April 14, 1802.) 3. Persons born out of the United States, whose fathers, at the time of such birth, were citizens of the United States; and, 4. Women married to citizens of the United States. (Act of February 10, 1855.) It has been decided (7 Wallace, 496) that the state of marriage confers citizenship on the wife, whether the citizenship of the husband existed at the time of the marriage or was acquired subsequently. With the exception of Belgium and Great Britain, both naturalization and five years’ continuous residence are required by the treaties as necessary conditions to the character and privileges of American citizenship.
In the explanatory protocols annexed to some of the treaties, it is expressly stated that the words “resided uninterruptedly, are to be understood, not of a continued bodily presence, but in the legal sense; and therefore a transient absence, a journey or the like, by no means interrupts the period of five years” contemplated by such treaties. It is presumed that this construction will be accepted by the other powers which have not in terms announced their assent thereto. On the other hand, where a minor of Prussian birth had enlisted in our Army, been honorably discharged, and then returned to Germany, resided in the house of his father (being still a minor) nearly a year, having during that time accepted a German passport for the purpose of enabling him to go to another province to perfect himself in his trade, it was recently (January 21, 1871) held by the Attorney General that this was such an interruption of his residence as to deprive him of protection from military service, notwithstanding his naturalization in the United States. Each ease must be judged upon its own circumstances.
It is material to observe that according to the opinion of the Attorney General in the case above mentioned, the recitations contained in the record of naturalization, as to residence, &c., are not conclusive upon either this or a foreign government; but that when such recitals are shown, by clear evidence, to be erroneous, they are to be disregarded.
The treaties referred to generally contain a provision that “the declaration of an intention to become a citizen of one or the other country, has not, for either party, the effect of naturalization.” Independently of the treaties, and long before them, the issuing a passport to a person who has not completed his naturalization was and remains prohibited under penalties by act of Congress.
The treaties in general provide that if a subject of the respective powers who has been naturalized in the United States renews his residence in the country of his original allegiance, without the intent to return, he shall be held to have renounced his naturalization in the United States. The intention not to return may be held to exist when the person naturalized in the one country resides in the other country more than two years, but this presumption may be rebutted by evidence to the contrary.
The treaties in general further provide that “a naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration—saving always the limitation established by the laws of his original country;” some of them, for example, Baden, Bavaria, and Wurtemberg, add “or other remission of liability to punishment.” This Department cannot undertake to give information in respect to the statutes of limitation on prosecutions for criminal or military offenses, or other remissions of punishment allowed by the domestic jurisprudence of foreign powers, [Page 26] or any of them. Citizens interested in the question must seek such information elsewhere.
The ministers of justice and of the interior, of the North German Union, announced by circular that the punishable action committed by the unauthorized emigration of a subject shall not be made the ground for a penal prosecution upon the return of such person to his former country, after an absence of not less than five years and his naturalization in the United States. A similar intention is declared in the explanatory protocol accompanying the treaty with Bavaria, and it may reasonably be expected that the other powers with whom we have treaties on this subject will construe them with the same liberality.
In respect to prosecutions for the failure to discharge military obligations—which are the principal cause of apprehension to naturalized citizens visiting their native country—the following provisions, in substance, with but slight verbal variations not regarded as material, are contained in the treaties with Austria and Hungary, Baden, Hesse Darmstadt, and Wurtemberg, or in the explanatory protocols accompanying the same, viz:
A naturalized citizen of the United States is liable to trial and punishment for the non-fulfillment of military duty according to the laws of those countries, respectively—
“1. If he has emigrated after he, on the occasion of the draft from those owing military duty, has been enrolled as a recruit for service in the standing army.
“2. If he has emigrated after he stood in service under the flag or had a leave of absence only for a limited time.
“3. If, having a leave of absence for an unlimited time, or belonging to the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out.”
With these exceptions the powers last enumerated have in effect pledged themselves that their former subjects, naturalized in the United States, will not, on visiting their original country, be held, subsequently, to military service nor remain liable to trial and punishment for non-fulfillment of military duty.
While this Government can give no guaranty on the subject, it may reasonably be expected that the other powers with whom we have treaties, will be desirous of conforming, so far as practicable to the rule last stated.
It is to be observed, however, that the superserviceable zeal or ignorance of local officials, civil and military, may often tempt them to cause arrests, and institute prosecutions which they suppose to be justified, if not required, by the laws of their country. Such proceedings may necessitate an appeal to the judicial tribunals, a necessity which is not the ground for national complaint or reclamation. They may even require the invocation of the dispensing or pardoning power of the supreme government. In either case our citizens are exposed to the hazard of arrest and military confinement, delay, and the expense of legal proceedings.
In respect to those countries with which we have no treaty stipulation on citizenship and naturalization, this Department must speak with much reserve. It cannot undertake to give an interpretation to foreign laws, even if the entire text of them was in its possession. The construction of those laws belongs to the judicial tribunals of the countries in which they are promulgated. It must be understood, therefore, that what follows is collected from authors of good repute and other unofficial [Page 27] sources, and is given only as probably authentic, but without affirming its accuracy. With this qualification it may be stated:
France.—It seems to be the better opinion of French jurists that a French subject can at any time, by his own act, and without express permission of his government, transfer his allegiance to any country which consents to naturalize him. By so doing, or by acceptance, unauthorized by the head of the state, of public functions conferred by a foreign government, or taking military service under a foreign government without such authorization, he, as the Code Napoleon terms it, “loses the quality of a Frenchman.” 2d. No foreigner can serve in the armies of France; a Frenchman, therefore, naturalized in the United States cannot be held to the performance of military service in France. 3d. After three years from the date of the naturalization of a Frenchman in the United States, any liability to military service is considered removed by lapse of time. If, therefore, a Frenchman is conscripted, and fails to respond to the requirement, he will not be held to acountability for such dereliction of duty (insoumission) after the lapse of three years from his naturalization. 4th. To obtain exemption, however, the late imperial government required, (see dispatch of Mr. Dix to Mr. Fish, No. 344, May 14, 1860,) a. That a Frenchman naturalized abroad, if charged with a failure to perform military service, should go before a civil tribunal and show by properly-authenticated papers that his naturalization was in conformity with the laws of the country in which it was effected. If the tribunal is satisfied on this point it declares him to have lost “the quality of a Frenchman.” b. This decision of the court must be presented to the council of war of the department, and if three years have elapsed subsequently to naturalization, the accused is to be discharged; otherwise he may be punished by imprisonment, said rarely to exceed thirty days. In any event he may be subjected to the costs of the proceedings. These rules are not known to have been, changed since 1869.
Italy, Spain, Norway, and Greece follow substantially the Code Napoleon, and treat nationality as lost by naturalization in a foreign country, or by entering without royal license into its civil or military service.
In the ultra-marine provinces of Spain no one considered a foreigner by its law is subject to military service, and foreigners, except the domiciled who have their own houses, are exempt from personal service in the municipal guards, but the latter are subject to the charges for furnishing lodging and transportation. (Decree of the Constituent Cortes, proclaimed July 4, 1870.)
In Italy, by the army law of 1855, naturalization abroad, without the King’s permission, does not exempt from conscription. The son of an alien who was born within the kingdom, and established his domicile uninterruptedly for ten years, is considered a citizen, and must inscribe his name on the levy list of the commune in which he resides; but residence for commercial purposes is not sufficient to constitute a domicile. The sons of a citizen, naturalized in a foreign country, born in such country before the naturalization of the father, must be inscribed on the levy list of their last place of residence in Italy.
A Russian subject cannot emigrate nor become naturalized in a foreign country without the permission of the Emperor. If he does so, he commits an offense for which he may be banished forever from the Russian dominions. If this penalty is applied he may thus of course escape conscription. If not, there is no guaranty against his being compelled to stand the chances of the lot for the annual supply of recruits.
A subject of the Ottoman Empire cannot divest himself of that character [Page 28] without the authority of the imperial government. If, without such authority, he accepts a foreign naturalization, it is treated as of no effect, and he is still considered and dealt with as in all respects an Ottoman subject. Every person who obtains naturalization abroad, or enters a foreign military service, without the permission of the Emperor, may be declared to have forfeited his character of Ottoman subject, and in that case is altogether interdicted from returning to the Ottoman Empire. The children, even minors, of an Ottoman subject naturalized abroad do not follow the condition of the father, but remain Ottoman subjects. (Law of January 19, 1869; see dispatch of Mr. Morris, No. 299, February 10, 1869.)
A naturalized citizen desiring a passport may address State Department, Passport Bureau, Washington, D. C., transmitting his certificate of naturalization, (it will be returned with the passport,) and be must state, under oath, that he is the identical person described in the certificate presented.
The application should be accompanied by a description of the person, stating the following particulars, viz:
Age, —— years; stature, —— feet —— inches, (English measure;) forehead, ——; eyes, ——; nose, ——; mouth, ——; chin, ——; hair, ——; complexion, ——; face, ——.
When husband, wife, and minor children expect to travel together, a single passport for the whole will suffice. For any other person in the party a separate passport will be required. Passports are now issued without charge.
The oath of allegiance to the United States, as prescribed by law, will be required in all cases. It may be taken before a notary public under his signature and official seal. When there is no notary in the place, the affidavit may be made before a justice of the peace, or other officer authorized to administer oaths.