No. 112.
Mr. Vignaud to Mr. Frelinghuysen.
Paris, November 13, 1884. (Received November 28.)
Sir: When they happen to visit their mother country, American citizens of French origin who have not performed military service in France are much astonished to find that notwithstanding their American passport and citizen papers they are called upon to account for having failed to report themselves for military service when it was due, and subjected in consequence to many inconveniences, sometimes to harsh treatment. They immediately apply to the legation for protection, and when informed that its action in such cases is very limited and mostly dependent upon the good will of the French authorities, they bitterly complain of being unsupported when they had been led to suppose that their acquired citizenship would shield them against inquisitions of this nature, and come very near charging our Government with culpable negligence of one of its most sacred duties—the protection of its adopted citizens traveling or residing abroad.
These complaints, although very natural under the circumstances, arise from a misunderstanding of the rights naturalized citizens can legitimately claim from their adopted Government and of the duties that Government assumes towards them. With a view of making this subject clear, I will endeavor to state here the grounds of the action of the French Government in the cases under consideration.
Natural citizenship in France is not incidental to the place of birth but [Page 177] to parentage; it is a privilege obtained by inheritance and transmitted in the same manner. A Frenchman carries with him his nationality wherever he goes, and transmits it to his children wherever they are born. The child of a Frenchman born abroad is French; the child of a foreigner born in France is not French.
This principle involves certain logical consequences. When nationality is made to be dependent on the soil it can easily be transferred; in selecting another home a person places himself in the same relation towards his adopted country which he occupied towards the country of his birth. Expatriation in that case leads to a transfer of allegiance. But when national character is given by the blood expatriation does not work of necessity a change of allegiance, because the original conditions remain what they were. In this case one carries with him that which gives him his national character; in the former case he leaves it behind.
It is not surprising, therefore, if the countries holding, like France, that natural citizenship is a privilege inherent to the blood, are more or less prejudiced in favor of the doctrine that a person cannot reject his national character of his own motion, that is to say, without the consent of his Government. Such has been the doctrine in France for many years, and, although now it has lost much of its rigidity in its practical bearing, it is still maintained in principle and enforced to a certain extent.
No law recognizes in a Frenchman the right of expatriating himself and of throwing off his allegiance. He can do so lawfully only if he obtains the consent of his Government. He may lose his national character, however, by doing a number of things which are described in the Code. Seeking or accepting foreign citizenship is one of these things. A natural-born Frenchman who transfers his allegiance to another country commits an act by which he forfeits his claim to French citizenship and for which he is made to suffer more or less. Unlike any other foreign citizen, for instance, he cannot take up his residence in France without the authorization of the French Government. Again, unlike any other foreign citizen, he cannot bear arms against France without incurring the penalty of death.
A Frenchman naturalized abroad, whether with the consent of his Government or without such consent, ceases therefore to be French. Of this there can be no question. But the consequences of the act might be quite different for him in the two cases. If he has secured permission to change his allegiance, nothing is claimed of him when he returns to France; if he has not, three things may happen to him:
- (1)
- The validity of the naturalization may be contested in its bearing upon French law and its operation in France. For instance, the change of nationality must have taken place by the free action of the party who claims to have made the change. If obtained through annexation or conquest of a territory it may be declared void. The same if conferred to a minor or to a married woman not authorized by her husband. “If the acquisition of another national character,” says the court of Lyons (judgment of October 19, 1855), “is governed by the laws of the country where it is obtained, the loss of the original character depends only on the country to which the naturalized party belongs.”
- (2)
- The naturalization, although admitted to be valid in France, may be declared to have no effect as to certain particular things; this happens when the change of nationality is sought and obtained for the purpose of evading the operation of a law. In such cases the naturalization [Page 178] will not hold against that particular law. “Naturalization sought exclusively for the purpose of violating a French law,” says the court of the Seine, 1877, “cannot hold against the interests of public and private order, which this very law is made to protect.” But it does hold in all other circumstances. For instance, a Frenchman, having taken advantage of the extraordinary laxity of the Swiss naturalization laws, to become a Swiss citizen, without even leaving France, for the evident purpose of divorcing, the court decided that his naturalization would not be recognized to the extent of giving validity to his divorce, though it would hold good for all other purposes.
- (3)
- The naturalization may be admitted to be fully valid in France, but only from the moment it was legally obtained and with no retroactive effect. Thus, a Frenchman who becomes naturalized abroad is admitted to be a foreigner, but is held to account for having failed to comply with the military laws of France, because this offense necessarily preceded the change of nationality, which, according to the French theory, is not to be recognized if made before coming of age.
Having thus briefly explained the principles and theory of the French legislation and policy in relation to the change of allegiance of French citizens, I will now state what is the practice in such cases.
The son of every Frenchman is registered at the place of his birth, if born in France, or at the place of his family’s residence if born abroad, as liable to military service. This registration forms in each commune a recruiting list, which is drawn up every year by the mayor, who afterwards sends it to the prefecture of the department, where it is combined with all the other lists in a general one, comprising all men belonging to the department born twenty years before. When the time comes each person registered on that list is notified to present himself at a designated place. If residing abroad, this notice is served upon him through his consul or through his parents and relatives residing in France. If he fails to report himself when called upon, he is charged with being an insoumis, a peculiar offense known in French law as the offense of “insubmission” (délit d’insoumission), and his name and description are given to the police authorities with the order to arrest him when found.
A Frenchman naturalized abroad is sure to be arrested when he comes to France, if his name is recorded on the recruiting list of his commune or department, and it is sure to be thus recorded if he has not performed his military service or if he has not been regularly exempted from that service for some particular cause. If he opposes no resistance, he is generally dealt with gently, otherwise he is handcuffed and roughly treated. The police deliver him to the military authorities of the department, where he is charged with being an “insoumis” and where a court-martial proceeds to try him upon that charge. He pleads that he has renounced his original nationality, that he is now a foreigner—generally an American or Swiss citizen—and that as such he is not liable to military service in France. To this plea the court-martial usually replies that it is not competent to pass upon questions of nationality, that such questions belong to the jurisdiction of the civil courts, to which the defendant must appeal, and it suspends its action until it is informed of the result of such appeal. While this appeal is pending, the defendant, as a rule, is left temporarily at liberty. If he is imprisoned, and the fact brought to the notice of the legation, a request addressed to the minister of foreign affairs, or to the minister of war, or to the general commanding the department, should the case be urgent, generally secures release on parole.
[Page 179]The case is brought before the civil court by summoning the prefect of the department, who is responsible for the preparation of the recruiting list, to erase from that list the name of the defendant. The documentary evidence necessary to establish a case are an American passport and a certificate of naturalization, accompanied by a French certificate from this legation describing the contents of the naturalization papers and vouching for their authenticity. If the defendant happens to be born in the United States he must also produce a certificate of his birth, written in French or translated by a sworn translator, and duly legalized either by a French consul in the United States or by this legation.
If his father has acquired American citizenship, it is well that he should produce, besides, a certificate of his father’s naturalization.
Upon the production of such evidence the French courts of justice render a judgment declaring that the defendant having ceased to be a French citizen cannot be held to perform military service in the French army, which, by the law, is entirely composed of Frenchmen. The defendant then goes back to the council of war, where his name is definitively erased from the French military rolls. The court nevertheless tries him for the offense of insubmission committed before he could have legally thrown off his original allegiance. If three years have elapsed since the day he was fully naturalized he benefits by the statute of limitation and is discharged. If he has not been naturalized for such period he falls under the action of the law punishing insubmission, and is sentenced to a fine or to a few weeks’ or months’ imprisonment, perhaps to both, according to the circumstances of the case.
If the defendant has resided abroad only a few years; if he took out his naturalization papers only a short time before returning to his native place; if, in short, he seems to have left France and to have renounced his original nationality for no other purpose than avoiding military service, the sentence is as severe as it can be. If on the contrary the defendant has been residing a long time abroad; if there are reasons to warrant the belief that he truly expatriated himself and became in good faith and with good intent a citizen of another country, the sentence is as light as possible; sometimes there is none at all, and the defendant is discharged without fine or punishment.
Whether punished or not, the defendant, when he is released by the military authorities, is not at the end of his troubles. He is now turned over to the civil authorities, who in dealing with him are guided by the same rules which governed the military councils. If he is supposed to be a bona fide foreign citizen, he is not interfered with; if he is suspected of having acquired his foreign citizenship to escape military service, he is at once expelled from France.
I must say that nine times out of ten an order of expulsion awaits the Frenchman naturalized abroad who ventures to come to France before having performed his military service. The interposition of the legation in such cases is useless. The French Government is very sensitive on this point, and will listen to no request tending to allow one who has averted military service by placing himself under a foreign flag to remain unmolested, and apparently in defiance of the French military laws, in the midst of those who are rigorously held to obey them. We have occasionally obtained a short extension of the time allowed for leaving France. We have never secured the revocation of an order of expulsion issued under such circumstances. As an example I can cite the case of Lacazette.
Lacazette was an American citizen of French origin, who, after having [Page 180] obtained the erasure of his name from the French recruiting list, was ordered to leave France before a fixed date. Lacazette being in bad health, Mr. Morton, at his request, asked that he be allowed to delay his departure for five months; the French Government replied that the request could not be granted because there were objections to the presence of Lacazette in his country of origin. (See inclosure 1.)
With the hope of relieving some of our American citizens of French origin of the trouble, expense, and mortification of having to appear before military councils and civil courts to establish their rights, we attempted in several cases to notify the French Government that persons born in the United States, or who had been naturalized there, were American citizens, and asked that their names be erased from the French military rolls; but the French Government declines to accept such notification, and replies invariably that those who are claimed by France as natural-born citizens can be dispensed with the military obligations imposed upon them only by procuring from the French Government the authorization to change their nationality, or by obtaining from a French court of justice a judgment declaring that they have lost their French character.
Two recent cases, those of Aubry and of Jacob, are good illustrations of the attitude taken by the French Government when applications of the kind above referred to are made to it. Aubry was a young Frenchman naturalized in New York in 1882. Mr. Morton sent to the minister of foreign-affairs a duplicate of his certificate of naturalization, with the request that it be communicated to the military authorities in order that he might not be troubled by them. M. Challemel Lacour returned the certificate, with the simple statement that Aubry not having applied for the authorization to change his allegiance, the minister of war cannot erase his name from the French military rolls. (See inclosure 2.)
The case of Jacob, one of the most extraordinary on record in this legation, is still more striking.
Jacob was a natural-born American citizen, but his father was French at the time of his birth. Having come to France he was incorporated in the army. The legation remonstrated and asked that he be discharged. The French Government replied that it had no authority for so doing; that in France all questions of nationality were to be settled by the courts, and that Jacob had no other resource but to appeal to their decision. He did not do so, and after serving out his time, he returned home and applied to the Department to take steps to have his name definitively struck off the French military rolls. The French Government declined to do so on the ground that Jacob being the son of a Frenchman was also French, although born in the United States, and could therefore be released from his military obligations towards France only if a judgment of a court of justice declares that he has lost his French character, or by his acquiring American citizenship after having obtained from France the permission for so doing, a permission which the minister of war is willing to give. (See note of M. Waddington to General Noyes, inclosure to dispatch of Mr. Morton No. 494, and note of Mr. Ferry to Mr. Norton, dispatch No. 555.)
In fact the legation is powerless during the whole stage of the proceedings instituted against a naturalized American citizen of French origin who has failed to comply with the military laws of France. We cannot prevent him from being arrested upon his arrival in France; we cannot prevent his trial for insubmission; we cannot prevent his being fined and imprisoned$ and finally, we cannot prevent his expulsion. [Page 181] Almost the only thing that we can do is to see that under no consideration whatever an American citizen be compelled to perform military service in the French army, but this is a thing seldom attempted because it is contrary to French law.
Is there any remedy for this state of things? I fear not, because I do not believe the French Government will consent to make an agreement, or to come to a distinct understanding upon this subject, the terms of which would precisely inform French citizens desirous of evading the military laws of France as to what they had to do to attain their object. The present uncertainty of things creates fears and entertains apprehensions which deter many from resorting to a change of allegiance to avoid military service. Something, however, ought to be attempted to protect American citizens of French origin against the vexations to which they are exposed when they return to France. The position assumed by the French Government, that in France it belongs only to the courts of justice to pass upon questions of personal status and consequently of nationality, is undoubtedly sound in principle; but it does not seem that it can be maintained when the question to decide is whether military service is due or not.
Courts of justice are instituted to settle contested or doubtful questions. When the United States Government declares that a man is an American citizen, the matter is settled; in claiming him we furnish to the French Government the best of -all evidence of his foreign citizenship. In a case established in such a manner there remains nothing doubtful 5 nothing which can be contested nothing for a court to decide upon. If the French Government contended that naturalizations of this class, although valid abroad, might not be recognized in France, the case would be different, for there would be an object in subjecting these naturalizations to the courts; but no such right is claimed, nor can be claimed, because the Frenchman who states that he has become the citizen of another country, and who is recognized as such by that country, is, in the very eye of the French law, a foreigner. The formality of compelling those who claim exemption from military service to establish their foreign citizenship before a court of justice is, therefore, a useless and empty one.
The French Government needs not the judgment of a court of justice to exempt from military service the Frenchman who has thrown off his original allegiance. The law says that the Frenchman who has been guilty of this act is no more fit to perform military service. It is undoubtedly the duty of the Government to see that it is executed, and when it chooses it does. The mayors of the communes where the local recruiting lists are prepared; the prefect of the department where these lists are combined in one; the general in command to whom this final list is sent, and the minister of war, have each the authority arid power to erase the name of those who are disqualified from military service. Without going further than this legation, I find evidence of the use of that power. In 1883 a natural-born Frenchman, Mr. John B. Foichat, who had acquired American citizenship, came to France, where he was arrested and confined in prison for a few days. Upon receiving evidence of his American citizenship the general commanding the department ordered his discharge, and he was liberated without having to appear before any court of justice. (See Mr. Morton’s dispatch No. 651.)
Were we to ask the French Government to dispense with this troublesome, expensive, and useless formality of appealing to courts of justice to establish the citizenship of Americans of French origin, which is already established as well as it can be, by their papers, we would not [Page 182] be asking anything contrary to the existing laws, or anything that the French Government has not heretofore occasionally granted. This is so true that in 1866 Mr. Drouyn de Lhuys himself suggested to Mr. Bigelow that a Frenchman, naturalized in the United States and liable to military service in France, should report himself at once to the mayor of the place where he is registered on the recruiting list and ask, after producing evidence of his naturalization, to have his name stricken therefrom. (Foreign Relations, 1866, I, 301.)
As the French Government cannot apply the law punishing “insubmission or disobedience” to those who have been naturalized for more than three years, because they are protected by the statute of limitation, and as it will certainly not renounce the application of that law whenever possible, we might ask that only those who are plainly covered by the statute of limitation be freed from seeking by any judicial process exemption from military service.
To effect this object a certificate somewhat similar to the one issued by the British Government to their subjects born in France (see inclosure 3) could be delivered, either by the Department or by this legation, to Americans of French origin applying for it, who have been naturalized for at least three years. The certificate would state that fact, and the mayors and prefects would be instructed, as they are now with reference to British subjects born in France, not to inscribe on the recruiting lists, or if already registered, to erase from such lists the names of those producing such certificate.
I have no reason to believe that the French Government will assent to such an arrangement; I even fear it will not; but as it is a fair and reasonable one, and as it would relieve many of our adopted citizens from unnecessary trouble, I think it ought to be proposed, and if the Department authorizes the legation to make an effort in that direction I have no doubt Mr. Morton will cheerfully do so.
In the mean time I venture to suggest that naturalized Americans of French origin who have not complied with the military laws of France, should in some manner be warned of the difficulties and vexatious which await them in their mother country, if they happen to return there, and informed of the steps to be taken to avoid or lessen these difficulties.
Trusting that this dispatch may be useful in this respect, and apologizing for its unusual length,
I have, &c.,