Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879

No. 463.
Mr. Fish to Mr. Evarts.

Legation of the United States,
Berne, October 18, 1879. (Received November 3.)

No. 218.]

Sir: I have the honor to acknowledge the receipt of your instruction No. 115, respecting the detention of the property claimed by Mr. Franz Fassbind, of San Francisco.

The action of the communal authorities in withholding the property of natives of Switzerland naturalized in the United States, on various pretexts, has been, from the early days of this mission, a frequent source of complaint, and of much correspondence between my predecessors and the local authorities. Frequently the sums involved are too small to pay for the trouble and expense of their collection in the face of the objections raised. The recent case of Jacob Zimmermann, of Ebikon, with which you are familiar, shows, one of the most frequent pretexts for with holding the property of our citizens of Swiss birth, viz, declining to recognize him as a citizen of the United States because he had not been released from his native allegiance. This refusal was made in his case although the man presented a certificate of his naturalization in the United States, and a formal renunciation of his Swiss citizenship, both duly authenticated by the Swiss consul at New York, where he was residing, on the ground that the documents had not been authenticated by the Swiss Federal Government, and because Zimmermann was formerly under guardianship, and no certificate of his being able, notwithstanding such guardianship, to acquire citizenship in the United States, or of his being able validly to renounce his previous citizenship, had been presented.

This refusal of the communal authorities was supported by the cantonal government, and appears even to have had the sanction of the federal government, inasmuch as the latter transmitted it to the legation. It was not until the diplomatic representations of the legation had been brought to bear upon these objections that the unreasonable requirements of the commune and canton were allayed.

That such annoyances and others of a like nature are of but too frequent occurrence, the inclosed letter from Mr. Byers, the consul at Zurich, clearly demonstrates. The government of that canton holds that—

A Swiss citizen acquiring the right of American citizenship without first handing in to, and having accepted by, the proper authorities here, a legal renunciation of Swiss citizenship, will still be considered as a citizen of Switzerland at any time he may return to this country.

While the right of the Swiss authorities to hold these views might possibly, under Swiss law, be maintained in the case of such naturalized citizens of the United States as return to Switzerland and establish themselves here, it is, I believe, in conflict with the Constitution and laws of the United States, as being a denial of the unalienable right of expatriation. More especially is this the case where, as in Ziinmermann’s case, the naturalized citizen, while residing in the United States, has sought to comply with the requirements of Swiss law respecting renunciation of Swiss nationality, but is hindered in so doing by the non-acceptance of his request for release from his native allegiance, and thus the doctrine of perpetual allegiance is sought to be maintained.

These annoyances will continue until some one of our naturalized citizens shall appeal to the tribunal federal or supreme court of Switzerland, when, I have no doubt, the enlightened justice of that body would render its decision in favor of the appellant. A decision in favor of the principle recognized by us, of the unalienable right of man to expatriate himself, would be of immense benefit to thousands of our naturalized citizens of Swiss birth, and to their heirs who are now deprived of the enjoyment of their property by the vexatious opposition of local officials, sometimes actuated by motives of personal interest, and who are likewise deterred from combatting such opposition on account of the trouble and expense involved therein.

Mr. Byers, whose long and great experience in cases of collecting property for this class of our citizens entitles his judgment to great-consideration, estimates the amount of property within the jurisdition of his consulate alone, belonging to such citizens of the United States, and withheld by the local authorities by reason of the claim of native allegiance, at 1,000,000 francs, or nearly $200,000.

In the absence of an adverse decision by the tribunal fédéral, I cannot fully share Consul Byers’s opinion that the higher courts will not remedy the evil, nor do I share his opinion that Congress should seek to prevent the naturalization of natives of this country who could not prove that they had never been under guardianship in Switzerland.

I believe that the remedy would be best attained were every Swiss, immediately upon his naturalization in the United States, to comply, so far as within him lies, with the provisions of the Swiss federal law of July 3, 1876, respecting the renunciation of Swiss nationality (see Foreign Relations for 1876, page 567), and that in every case where such compliance was thwarted by the action of the communal or cantonal authorities, the legation should be instructed to intervene diplomatically, and, failing to succeed, it should be empowered, after reference to the Department of State, to carry the appeal to the tribunal fédéral.

The decision of a test case by the latter in our favor would be the most effective barrier to similar future annoyances, and were it adverse to us, it would then be for us to consider the expediency of diplomatic negotiations for a remedy of the evil.

I particularly invite your attention to Mr. Byers’s letter, and I respectfully ask your instructions on this important question involving the nationality and the pecuniary interests of a large number of our naturalized citizens, a large majority of whom are proud of their acquired citizenship, and can ill afford to sacrifice their property for the sake of the exploded notion of a perpetual allegiance.

Should you adopt my views of the question, it might be advisable to intimate through the public press to our citizens of Swiss birth that it is to their own interest for them to formally renounce their allegiance to Switzerland.

In Mr. Fassbind’s case, I have, in compliance with your instructions, instituted inquiries concerning the facts, and shall be guided in my action by the result of such inquiries.

I have, &c.,

NICHOLAS FISH.

[Inclosure.]

Mr. Byers to Mr. Fish.

United States Consulate,
Zurich, October 11, 1879.

Sir: I would respectfully call your attention to the peculiar views taken by the government of this canton as to the status of Swiss persons who have become citizens of the United States. It is maintained, first, that no Swiss can become a United States citizen, or will he so considered by the authorities of this canton, unless he had first handed in to the authorities here a renunciation of his Swiss citizenship; second, this renunciation must have been accepted by the authorities here.

I may here note that great discretion seems to be allowed the local authorities as to whether this renunciation shall be accepted. Usually, if the applicant has had a guardian in Switzerland, the application will not be accepted at all, and the number of adults residing in America and still having guardians in this country, is something remarkable.

The law permits the appointment of a guardian for adults by the local authorities in various cases, and especially in cases where the person has given signs of extravagance. I may add that the going to America is one of these extravagances. This constant guardianship of other people’s interest is manifestly for the sole purpose of giving the township control, and finally possession, of other people’s property. In many cases not even the interest will be sent him, the ward, and as to a collection of an inheritance left him, it becomes, under the ruling of the authorities, simply impossible, unless the guardian and local authorities see fit, of their own free will, to permit it. I may add, that after years of experience in collection cases here, the guardian and the local authorities nine cases out of ten, do not see fit to permit it, and the cantonal authorities justify them in their action.

In short, under past rulings, a naturalized Swiss in America, who has inherited property in his native land, might almost give up all hopes of ever securing it, so many are the obstacles put in the way, principal of which are the informalities of his renunciation of citizenship, or rather the impossibility of obtaining acceptance of the renunciation in case the applicant is one of the hundreds and thousands who happen to have had a guardian.

As a case in point, I inclose an extract from a letter written to me by the cantonal government, in the case of Jacob Strehler, in which the doctrine is repeated that any Swiss naturalized in America without his renunciation of citizenship being accepted will be, should he happen to return here, treated as a Swiss.

In Strehler’s case, as in almost hundreds of others of which I know personally, the injustice is simply outrageous. Strehler had been many years an American citizen, and had been allowed and encouraged by his guardian to go to the United States. But when his father died and left him a large property, the collection of it was interfered with and prevented by the guardian and local authorities, on the ground that he was possibly not capable of doing business in America, being still inflicted with a guardian at home, and on the further ground that the local authorities, quite naturally, had never granted his renunciation of citizenship. I petitioned for Strehler myself, that this renunciation, properly offered, should be accepted. I was (of course) refused, and the cantonal authorities to whom I appealed justified the refusal to turn the property of Strehler over to me, though I was properly empowered to receive it for him.

Strehler’s case, however, is only one of hundreds of the kind, where the principle is maintained that once a Swiss, always a Swiss, unless the guardian and authorities here see fit to accept renunciation, and I have pointed out that usually they will not accept it.

The result of this action on the part of the local authorities of this canton, and of the cantonal government which upholds them in it, is—

1st. A virtual confiscation of estates inherited here by Swiss naturalized in the United States, especially if they have once been under guardianship here.

2d. A deprivation for such persons of the rights of American citizenship. They cannot collect their property, and should they happen to come here, on a visit even, they are liable to be seized upon and treated as Swiss, not as American citizens.

To my mind there seems to be no remedy for this state of affairs (the higher courts will not remedy it) except through a new treaty with Switzerland, by which it shall be declared once and forever that the naturalization of Swiss in the United States is not a mere farce, and it would seem just that an act of Congress should prevent our courts from naturalizing a single Swiss citizen who could not prove that he had never been under guardianship in his native country.

I believe there are to-day in this consular district a million francs belonging to citizens of the United States, not one penny of which can be collected, for the reason that the claimants, though supposing themselves to be American citizens, are here declared to be still Swiss citizens, and under guardianship at that.

I am, &c.,

S. H. M. BYERS.

[Inclosure in Mr. Byers’note.—Translation.]

Cantonal government of Zurich to Mr. Byers.

Zurich, October 11, 1879.

Mr. S. H. M. Byers, United States consul at Zurich, having asked us in his letter of the 18th of March to furnish him with a list of all persons registered as former American citizens in Zurich, and who have acquired Swiss citizenship here, we reply:

The cantonal government, after examining a proposition of the interior court of Zurich, concludes as follows:

1st. A Swiss citizen acquiring the right of American citizenship without first handing in to and having accepted by the proper authorities here a legal renunciation of Swiss citizenship, will still be considered as a citizen of Switzerland, at any time he may return to this country.

According to article 44 of the federal constitution, no canton has the right to deprive any of its citizens of the rights of citizenship here.

There is no limitation or prescription (Verjährung) of Swiss citizenship.

There are great numbers of persons living in this canton who have returned here after having acquired American citizenship. A separate controle of these persons is not kept, and therefore it is impossible to prepare a list.

2d. Communication of the above to the department of the interior.

W. STUSSI,
For the Government of Canton Zurich.