No. 240.
Mr. Bayard
to Mr. McLane
.
Washington , April 30, 1887.
Sir: I have received your No. 391, of the 14th instant, inclosing a reply from the minister of foreign affairs, that the name of Jean Pierre Arbios can not be taken off the military lists before the production by him of a judgment of the civil tribunals recognizing his foreign citizenship; I likewise notice that you state that any appeal to the judiciary for this purpose would be useless, because in all cases of this kind brought to the notice of your legation the French courts have decided that the minor son of a Frenchman can not lose his original character through any action of his father, and you refer to Mr. Morton’s Nos. 494 and 555, concerning A. P. Jacob, where the reply of the foreign office to the same effect is given. The present case is even less favorable, as the son was born in France and only lived four years in the United States, being an American citizen under section 2172 of the Revised Statutes, as he was a minor and dwelling in the United States at the time of his father’s naturalization, having left France at the age of eighteen, availed himself of his father’s naturalization the following year, and returned to France at the age of twenty-three, when he was at once arrested and put in to the army. In your No. 391 you speak, however, of the possibility of a person in the situation of Arbios applying directly to the French Government for permission to change his nationality. You will be able to judge whether it would be of any use for him to adopt this course, and endeavor, in case [Page 294] his petition was granted, to obtain a leave of absence or furlough from the, French army to carry out that purpose, as his term of four years’ service will not expire until July, 1889. It may be that the minister of war would not consent to indorse such a petition to the minister of justice, inasmuch as Arbios has not, like Jacob, in whose case he did it, served out his full time in the army.
It is noticed that in Mr. Vignaud’s No. 665 he states, “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 mayors of the commune, * * * the prefect of the department, * * * and the general in command have each the authority and power to erase the name of those who are disqualified from military service,” and he cites the case of John B. Foichat, who was liberated without having to appear before any court of justice in support of that fact.
Whether the fact that Arbios is actually a soldier in the ranks makes any difference as regards the powers of those officials does not appear to be stated. The minister of foreign affairs states that the minister of war informs him that Arbios’s name can not be erased from the lists without a decision of the civil courts, which seems to indicate that he had no power in the matter of discharge if raised on the point of citizen-Ship, though he might possibly be able to order it as a matter of grace if the case were considered deserving of it.
I must leave to your good judgment the propriety and probabilities of success of any further appeal to the French Government in this case.
I am, etc.,