No. 91.
Mr. Morton
to Mr. Frelinghuysen.
Paris , February 5, 1884. (Received February 25.)
Sir: I have the honor to acknowledge the receipt of your dispatch No. 436, of January 21, 1884, regarding Alfred P. Jacob, who was drafted into the French military service, although he was born in the United States, his father, a native of France, having acquired American citizenship before the son was of age. I am instructed to bring the matter to the attention of the French foreign office, with a view of obtaining at least Jacob’s recognition as an American citizen.
As the instructions of the Department are contingent upon the results of a full inquiry into all the facts of the case, I venture to submit the following remarks before taking any action in the matter:
When Mr. Jacob, senior, applied to this legation in 1879—Alfred P. Jacob’s application, if made, is not recalled—he was informed that the case of his son was a clear one, but that there was only one safe way of proceeding to establish his rights. In the first place, he was to refuse military service, upon the ground that he was not a Frenchman. To this plea it was expected the military authorities would answer that they were not competent to pass upon a question of naturalization, but they would suspend action until Jacob could have the question decided by a civil court. He was then to apply to such a court and produce in evidence of his statement the papers with which he was possessed—passport, his father’s certificate of naturalization, certificate of baptism, with an additional certificate given by the legation. The court [Page 140] would examine these papers, and, if found genuine, would render a judgment declaring that the applicant was not a Frenchman.
It is only upon the production of such judgment that the French military authorities can strike off a name inscribed on the roll by authority of law. They have no discretion in the matter, nor has the Government itself. Mr. Jacob was informed of this, as are all others similarly situated. He did not, however, follow the course recommended, and insisted upon having his case submitted to the French Government. It was, but without the slightest hope of obtaining a favorable result. General Noyes called in person on Mr. Waddington, then minister of foreign affairs, explained to him the ease and handed him, with warm recommendation, a petition drawn up and signed by Jacob’s father.
The answer was exactly the one expected. The minister stated substantially that Jacob, being born before his father had been naturalized, was, in the eye of French law, a French citizen; that the minister of war had no authority to dispense with a service imposed on every Frenchman, and that, if he disclaimed French citizenship, it belonged only to the courts to pass upon the question.
There was no other recourse open to Mr. Jacob but the one which had been pointed out to him. He let the matter drop, his son was drafted and served without protest in the French army.
In presence of these facts I respectfully submit to the Department whether there is still occasion for making the application. I am directed to make an application which would undoubtedly bring the answer that Mr. Jacob must apply to a court of justice if he wants to correct his personal legal status as it now stands in France.
In stating this case, the Department refers to the article of the French Code which says that French citizenship is lost by acquiring other citizenship (art. 17). The reference is correct, but the article quoted is to be completed by article 1 of the Decree of 1811—which is law—stating that no Frenchman can be naturalized in a foreign country without the authorization of the Government. The French Government strictly adheres to this principle; but the courts of justice have very generally held that foreign citizenship acquired legally abroad is valid. There is no case on record at this legation of a Frenchman naturalized in the United States whose American citizenship was not recognized by the French courts of justice, on the ground that it was acquired without the consent of the French Government. But this article of the Code Napoleon has no bearing upon the case of Jacob. The article applicable in this instance is the tenth, which says that any child born of a Frenchman in a foreign country is French. Jacob’s father was a Frenchman at the time of the birth of the son; the son is therefore a Frenchman in the eye of the French law, until a competent tribunal decides that he has renounced his national citizenship and acquired another one.
In this respect the French law, which is only an application of the principle common to all Latin races, that natural citizenship is a kind of nobility transmitted with the blood, stands in direct contradiction with the English and American principle, according to which citizenship is a fact primarily determined by the place of birth. This is one of the numerous conflicts of laws existing in the legislation of friendly countries, which are tolerated from comity and for which there is no other remedy than by special treaty. France and Switzerland recently recurred to this process for the settlement of conflicts of this very nature.
Awaiting further instructions in this matter, I inclose herewith copy and translation of Mr. Waddington’s note to General Noyes, and copy of the certificate furnished to Mr. Jacob.
[Page 141]I may add that this case was not reported at the time to the Department, as it presented no peculiar feature, the ruling of the French Government being in this instance what it has always been in every similar case.
I have, &c.,