to Mr. Lothrop.
Washington, February 18, 1887.
Sir: Tour dispatch No. 92, of January 18, 1887, relative to the case of Adolph Lipszyc, has been received. In it you state that “Lipszyc is not charged with any violation of the Russian laws before leaving the country or since his return. His sole offense is his naturalization in the United States without the consent of Russia, of which he was a subject.”
By the law of July 27, 1868 (Rev. Stats., sec. 1999), it has been enacted that—
Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas, in recognition of this principle, this Government has freely received emigrants from all nations and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United State which denies, restricts, impairs, or questions the right of expatriation is declared inconsistent with the fundamental principles of the Republic.
This right, therefore, it is the duty of the Department and its representatives abroad to maintain without restrictions or qualifications.
At the same time the Department is far from questioning the right of His Imperial Majesty to refuse to permit his subjects to emigrate. This is an incident of territorial sovereignty recognized by the law of nations, but can only be exercised within the territory of Russia. If a Russian subject emigrates and becomes a citizen of the United States his acquisition of this citizenship entitles him to all the privileges which by treaty, or the law of nations, belongs to citizens of the United States when visiting Russia. Doubtless he could, when thus revisiting Russia, be tried, as a general rule, for offenses committed by him before emigration.
But this general rule does not include the offense of expatriation when followed by the acquisition of citizenship in the United States. This position is maintainable under the law of nations, but the case fails within the tenth article of the treaty of 1832, between Russia and the United States, a copy of which is inclosed.
The article distinctly provides that Russian subjects in the United States and American citizens in Russia, without any distinction as to native or naturalized citizens or subjects, may dispose of their property. That a citizen of the United States naturalized in Russia could under the treaty dispose of his property in the United States is beyond question, and the privileges thus conferred are equally given and equivalent, and should be so construed by each of the contracting parties. As citizens of the United States becoming Russian subjects are not to lose their property in the United States, so Russian subjects becoming citizens of the United States are not to lose their property in Russia.
It may be said that this stipulation is qualified by the concluding sentence of the article, providing that it is not to derogate “from the force of the laws already published, or which may hereafter be published, by His Majesty the Emperor of all the Russias to prevent the emigration of his subjects.”[Page 949]
It is not necessary to do more than call your attention to the rule that the assertion at the close of a treaty, of a general claim to which a prior grant is an exception, is an affirmation of such a grant. Of this the reassertion of their general claims to sovereignty by the German emperors in their treaties with other sovereigns may be taken as an illustration; and another, to the same effect, may be found in our negotiations with Great Britain, in which she recognized Britons naturalized in the United States to be American citizens, while maintaining the doctrine of perpetual allegiance. But such reservation does not conflict with the prior grant. When the status of citizenship is changed, then the right of control ceases.
His Imperial Majesty may “prevent” Russians from coming to the United States, but when they have come, and have acquired American citizenship, they are entitled to the privileges conferred by the article.
If there could be any doubt that this is the true meaning of the article in question it would be removed by the fact that it is adopted from the fourteenth article of the treaty between the United States and Prussia, concluded May 1, 1828.
That treaty was accepted by Mr. Buchanan and Count Nesselrode, the negotiators, as a standard; and the Russian treaty is to be taken with the construction which the Prussian treaty rightfully bears. A copy of this ‘treaty between the United States and Prussia is inclosed herewith.
It was never contended by Prussia, nor subsequently by Germany, that the validity of the naturalization of a Prussian or German in the United States was under this article to be conditioned upon his having emigrated with his sovereign’s consent. If such an emigrant left his native land in violation of its laws requiring him to perform military service, this might be the subject of prosecution on his return. But emigration, by itself, when followed by the acquisition of citizenship in the United States, was not to deprive such citizen of the unmoleste4 enjoyment of the rights of American citizenship as given by international law as well as by the treaty in question. The object of the treaty was to secure to that large class of Prussians who had emigrated, and had become citizens of the United States, the right to dispose of their property in their native land, with a mutual and equivalent privilege to emigrants from the United States, who should become Prussian subjects. The question whether the emigration was with the consent of the sovereign was not made, nor could such a condition have been accepted without destroying the newly-acquired rights of citizenship.
The construction always given to the Prussian treaty by both the parties thereto has been that the rights it gives Prussians (or Germans) who become citizens of the United States are not dependent on their emigration being with their sovereign’s consent. German sovereigns have not been disposed to look favorably on those of their former subjects who, having emigrated and been naturalized in the United States, revisit their native land to dispose of their property. But numerous as have been such visits, in no single case has there been an attempt to proceed against such visitors for breach of allegiance. Count Nesselrode and Mr. Buchanan must have been well aware of this5 and it is impossible for us to do otherwise than hold that when they adopted in 1882 the very words of the treaty of 1828 they adopted them with the construction which they not only naturally bear, but which had been assigned to them in practice both by Germany and the United States.[Page 950]
We must, under the treaty before us, regard Lipszyc’s United States citizenship as having been acquired with the assent of Russia; and, therefore, he is entitled under treaty, not merely in this country but in Russia, to the immunities attached to such citizenship. As a citizen of the United States he visits Russia 5 and although he may be liable, when in Russia, for offenses committed by him before his emigration, and may be expelled from Russia on reasonable grounds, he can not be tried for an emigration which, when followed by naturalization in the United States, Russia herself recognizes as conferring citizenship of the United States with the right of disposition in Russia of property there situated. And when you invite from His Imperial Majesty’s Government the withdrawal of penal action based exclusively on that emigration you ask for no act which is at variance with the policy of that Government, but for one that is simply in accordance with its treaty stipulations. The withdrawal of such prosecution would be regarded as a signal proof of the continuance of the friendship which has so long existed between Russia and the United States.
Such a withdrawal is [in] no way Inconsistent with the acknowledged right of Russia to prevent emigration but on the other hand for the the United States to acquiesce in the deprivation of the rights which belong to their naturalized citizens, would be to surrender one of their cherished and fundamental institutions, To such surrender this Department can not assent. And in view of the eminently friendly relations between the two Governments and of the facts that the question is not, under the treaty, one of principle with Russia; and that Lipszyc has been already subjected to a long imprisonment, I am confident His Imperial Majesty’s Government will not hesitate to act in accordance with the opinions and wishes of the United States. Releasing Lipszyc from imprisonment in no way derogates from the rights of Russia as reserved in the treaty, and I am sure His Imperial Majesty’s Government will be unwilling, by continuing that imprisonment, to press on the United States so unwelcome a question as that of the inviolability of the treaty privileges of her citizens.
I am, etc.,