The first of the papers in this correspondence presents another phase of the American doctrine.4
“Department of State, Washington, June 1, 1852.
“Sir: I have to acknowledge the receipt of your letter to Mr. Reddall, of the 28th ultimo, inquiring whether M. Victor B. Delpierre, a native of France, but a naturalized citizen of the United States, can expect the protection of this Government in that country when proceeding thither with a passport from this Department. In reply, I have to inform you that if, as is understood to be the fact, the Government of France [Page 1301] does not acknowledge the right of natives of that country to renounce their allegiance, it may lawfully claim their services when found within French jurisdiction.
“I am, &c.,
“J. B. Nines, Esq., New. York.”
This case has already been referred to in M. Treitt’s report.1
Alibert was a native of Digne, Basses Alpes. He went to the United States in 1838, at the age of 18, and, after going through the usual formalities, was naturalized in 1846. In 1852 he returned to France and was arrested while on a visit to Dignes as an “in sounds” of 1839, and pleaded his naturalization as exempting him from service. The United States consul at Marseilles applied to the general commanding the district, who informed him that Alibert’s claim was founded in right, if his naturalization was really dated in 1846, as his naturalization would incapacitate him from serving in the French army, and the date of it would prove that more than three years had elapsed since the offense was committed, (that being the period of limitation required by the penal code,) and that he could not consequently be proceeded against for insubordination. Nevertheless Alibert was brought before a “conseil de guerre” at Marseilles, and condemned to a month’s imprisonment.
The cause was then brought by appeal before a superior military court at Toulon, and the sentence quashed, thereby establishing Alibert’s immunity from conscription.
In 1859 Mr. Cass 2 directed the United States minister at Paris to procure information on the French law of naturalization, &c., and at the same time instructed him as follows: “This Government maintains the right of expatriation and naturalization, and maintains also that if a foreign-born citizen naturalized here returns to his native country, he is not liable to military duty, except such as was actually due and which he had been called upon to perform before his emigration. In any communication you may have with the minister for foreign affairs you will make known to him these views of the United States.”
Accordingly, when the case of Michel Zeiter arose in 1860, Mr. Faulkner made a communication in this sense to M. Thouvenel:3 “Our doctrine is that the naturalized emigrant cannot be held responsible upon his return to his native country for any military duty the performance of which has not been actually demanded of him prior to his emigration. A prospective liability to service in the army is not sufficient. The obligation of contingent duties depending upon time, sortition, or events thereafter to occur, is not recognized. To subject him to such responsibility, it should be a case of actual desertion or refusal to enter the army, after having been actually drafted into the service of the government to which he at the time owed allegiance.”
The case of Michel Zeiter is so fully explained in M. Treitt’s report, and in the copy of the judgment of the provincial court in Addenda F, that it is unnecessary to say anything more about it here.
President Buchanan referred to these cases in his message to Congress of the 3d of December, 1880:
“With France, our ancient and powerful ally, our relations continue to be of the most friendly character. A decision has recently been made by a French judicial tribunal, with the approbation of the Imperial government, which cannot fail to foster the sentiments of mutual regard that have so long existed between the two countries. Under the French law no person can serve in the armies of France unless he be a French citizen. The law of France recognizing the natural right of expatriation, it follows as a necessary consequence that a Frenchman by the fact of having become a citizen of the United States has changed his allegiance and has lost his native character. He cannot therefore be compelled to serve in the French armies in case he should return to his native country. These principles were announced in 1852 by the French minister of war, and in two late cases have been confirmed by the French judiciary. In these, two natives of France have been discharged from the French army because they had become American citizens. To employ the language of our present minister to France, who has rendered good service on this occasion, ‘I do not think our French naturalized fellow-citizens will hereafter experience much annoyance on this subject.’ I venture to predict that the time is not far distant when the other continental powers will adopt the same wise and just policy which has done so much honor to the enlightened government of the Emperor. In any event our government is bound to protect the rights of our naturalized citizens everywhere, to the same extent as though they [Page 1302] had drawn their first breath in this country. We can recognize no distinction between our native and naturalized citizens.”
The next published correspondence is in 1866 respecting the cases of MM. Schneider, Cochener, Todry, and Pierre.1
These persons were all naturalized in the United States, and had returned to France with American passports.
The cases were all alike. The men were severally arrested as “insoumis” on their arrival within their native communes, and detained for some time in prison, with more or less rough usage, until the local tribunals decided on their claims for exemption.
They were all eventually discharged.
The United States minister at Paris, Mr. Bigelow, remonstrated in strong terms against these proceedings, and M. Drouyn de Lhuys in each case replied that the complainants must prove their claims to exemption in the usual manner, citing the case of Zeiter to show the impartiality with which such applications were dealt with.2 If François Pierre had been an American by birth, or a citizen of the United States under other circumstances, his passport would certainly have protected him from prosecution for the offense in question; but when a person “returns to his native country with foreign naturalization papers, it is not just to lay aside his nativity and admit his new nationality as protecting him by retroactive effect, contrary to every principle of law, against former acts, and particularly against offenses of which he was guilty, a Frenchman, as in the present case. His presence in his native country obliges him to explain his case by the laws of the land, and as long as he has not done that he is considered to have preserved his primitive citizenship.”
M. Drouyn de Lhuys,3 however, suggested at an interview on the 28th of April, 1866, that naturalized Americans should be directed to proceed at once on returning to France to the mairie where their names were enrolled, and to claim exemption from the conscription, and get their names removed from the list.
Mr. Seward,4 on the 7th of May, 1866, instructed Mr. Bigelow to urge on the French government that an American passport should be considered sufficient proof of nationality, and that if a person representing himself to be an alien were conscribed, the military tribunals should decide summarily on his claims to exemption; and if they decided against him, the matter should be at once submitted to the government for diplomatic discussion.