Washington, December 21, 1872.
Sir: I have the honor to acknowledge the receipt of your letter of the 6th instant, inclosing a copy of a communication from Baron Lederer, of the 21st ultimo, and presenting for my consideration the following case:
One François A. Heinreich, now resident in Austria, was born in the city of Kew York in 1850, of Austrian parents, who were then temporarily residing in that city, but who never became naturalized. The family returned to Austria when François was about two or three years old, taking him with them; and he has resided there since the return of his parents to that country. It is stated that at one time François obtained a passport as a citizen of the United States from the American consul at Stuttgart, in Wurtemburg. It is also stated that in 1866 and 1867 he was furnished with Austrian passports, under the protection of which he traveled in the quality of an Austrian subject.
François is now called upon to render military service in Austria, but claims to be exempt therefrom on the ground that he is an American citizen and he desires this Government to protect him in that claim. The Austrian government, however, denies that he is an American citizen, and insists that he must be considered an Austrian subject. Upon the above state of facts my opinion is requested as to whether the said François is a citizen of the United States and entitled to protection. The first article of the convention of September 20, 1870, between the United States and the Austro-Hungarian monarchy, reads as follows:
“Citizens of the Austro-Hungarian monarchy who have resided in the United States of America uninterruptedly at least five years, and during such residence have become naturalized citizens of the United States, shall be held by the government of Austria and Hungary to be American citizens, and shall be treated as such. Reciprocally citizens of the United States of America who have resided in the territories of the Austro-Hungarian monarchy uninterruptedly at least five years, and during such residence have become naturalized citizens of the Austro-Hungarian monarchy, shall be held by the United States to be citizens of the Austro-Hungarian monarchy, and shall be treated as such. The declaration of an intention to become a citizen of the one or the other country has not, for either party, the effect of naturalization.”[Page 1306]
As a general rule, a person born in this country, though of alien parents who have never been naturalized, is under our law deemed a citizen of the United States by reason of the place of his birth, (10 Opin., 321, 328, 329; and see also section 1 to the fourteenth amendment to the Constitution.) But the article of the convention just quoted—the right of an American citizen to change his national character, and become a citizen of Austra—is clearly recognized; but it is required that he shall have had a residence of five years in that country, besides being naturalized there, before the United States are bound to consider and to treat the person so naturalized as an Austrian citizen. In the case under consideration, therefore, though the said François is a native of this country, and as such was originally clothed with American nationality, yet, he having resided in Austra uninterruptedly far beyond the period mentioned, the question submitted resolves itself practically into this inquiry, whether during that time he has acquired Austrian citizenship?
It would seem from the communication of Baron Lederer that, under the law of Austria, a foreign-born child of Austrian parents takes the nationality of the latter, and is regarded as an Austrian citizen. Assuming this to be correct, and I am satisfied it is, a doubt might be suggested whether political duties or burdens (such as military service) could rightfully be imposed by that country upon a person who by birth is a citizen of this country, without his consent, or without his assuming the character of, or signifying by some act or declaration his will to be, a citizen of the former country. But the facts presented relieve the case before me of any difficulty of this sort. The circumstance that the said François has at different periods obtained passports from the Austrian government, and traveled under their protection as an Austrian subject, taken in connection with the length of time during which he has resided in Austria, may, I think, be viewed as a sufficient manifestation of consent on his part, at those periods especially, to be a member of that nation.
Now, there can be no question that such consent, co-operating with the law of Austria, to which reference has been made, (by which, as it would seem, children of Austrian parents born abroad are naturalized at their birth,) and accompanied, moreover, by continued residence in that country, effected a complete change in his nationality from American citizenship to Austrian citizenship. Having once acquired the latter, it cannot reasonably be maintained that his Austrian nationality, or the political obligations appertaining thereto, may be cast aside by him at pleasure so long as he continues to reside within the jurisdiction of Austria.
I have not overlooked the fact that François once obtained a passport from an American consul at Stuttgart. This is unimportant except so far as it is indicative of a preference in regard to nationality, and I consider it overbalanced by the circumstances above adverted to, and the further circumstance that from the return of his parents to Austria up to the present time his domicile or residence appears to have remained in that country.
In view of all the facts and circumstances appearing in this case, I am of the opinion that, under the provisions of the aforesaid convention, François A. Heinreich should be held by the United States to be an Austrian citizen, and treated as such; that he is not an American citizen, and consequently not entitled to protection from this Government.
I am, &c.,
Hon. Hamilton Fish,
Secretary of State.