No. 592.
Mr. Lothrop to Mr. Bayard.

No. 114]

Sir: Soon after sending my dispatch. No. 110, of April 2, I had reason to believe that I was mistaken in my conclusion that Adolph Lipszyc would be allowed to leave the country without further prosecution.

I therefore, on April 8, again wrote the foreign office on his behalf.

On April 25 I received a note from M. de Giers in response to my note respecting Lipszyc.

The note had evidently been prepared with much care, and though in terms directed to Lipszye’s case, it really had in view an exposition of the views taken by the Russian Government in reference to the naturalization question at large. It aims to show that the enforcement of their laws against Russian subjects who have been naturalized in the United States ought to be considered as a matter of domestic concern, and no grievance against the United States.

[Page 959]

I thought it my duty to make known at once that this view could not be satisfactory to the United States, and accordingly I replied, somewhat at length, in a note to M. de Giers, on the 6th instant.

The matter has thus taken a form which seems to make it proper that I should lay the correspondence before you. I shall therefore inclose herewith:

Copy of my note relative to Lipszyc.
Copy of M. de Giers’s reply to above.
Copy of my reply to M. de Giers of May 6, instant.

I do not think the Russian Government has appreciated the strong feeling that exists in the United States in reference to the protection of our naturalized citizens. While avoiding importunity, I have felt it my duty, respectfully, but earnestly, to press our views Upon the attention of the Government here. I wish I could say that it has been with any decisive success. But I am informed that never before has the foreign of flee here given the matter consideration enough to discuss it. This is at least encouraging.

I shall be glad to receive an expression of your views, and such suggestions and directions for the future dealing with the question as you shall think appropriate.

I am, etc.,

Geo. V. N. Lothrop.
[Inclosure 1 in No. 114.]

Mr. Lothrop to M. de Giers.

Your Excellency: Upon considering the communication which your excellency did me the honor to send me on March. 20–April 1 respecting the case of Adolph Lipszyc, I feel constrained further to address you.

I had earnestly hoped that it would have been thought proper to liberate Lipszyc. You do indeed say that he was set at liberty on December 15 last, but as this was only on bail to appear for trial, it can not be said that he was set free from legal restraint. The charge “against him, and to which he is held to appear, is not for any offense committed in Russia, but only for acquiring citizenship in the United States. That he should be prosecuted and held for this is the precise grievance of which the United States complain.

In addition to his detention, his United States passport and his pension certificate were taken from him and are still withheld. It is true you say that they are held as proofs of his guilt, but your excellency will allow me to remind you that they are unquestionably his private property, of which he was in lawful possession, and of which he had made no criminal or wrongful use.

The United States can not recognize the right to deprive him of the possession and use of these papers.

I would respectfully ask your excellency to reconsider this case, in the hope that you may be able to restore to Lipszyc his papers, and also to set him at liberty from the restraint in which he now is held. I beg to renew, etc.,

Geo. V. N. Lothrop.
[Inclosure 2 in No. 114.—Translation.]

M. de Giers to Mr. Lothrop.

Mr. Minister: By your note dated March 27–April 8, you informed me that the Government of the United States considered the arrest and trial of Mr. Adolph Lipszyc, prosecuted for having become a naturalized American citizen, as a grievance of which it ielt called upon to complain.

[Page 960]

You made also the observation that the documents of Lipszyc, having been legally delivered to him and constituting private property, of which he had made no criminal use, the Government of the United States could not admit that he might be deprived of them or hindered from making use of them.

I shall permit myself to remark to you on this subject, Mr. Minister, that the whole question appears to rest on a misunderstanding, which has prevented the acts of the Imperial Government from receiving a correct interpretation on your part.

The relations of the state to the subject or citizen are the exclusive domain of the internal legislation of every country, which alone has the right and the power of loosening or tightening the bonds that serve to hold its subjects or citizens according as it may judge fit or necessary for the public welfare in general.

This right is thus understood and practiced by all governments. Thus it was only in 1868 that the United States proclaimed the freedom of emigration of their citizens; it was in 187G that England for the first time abandoned the strict observance of the principle, “once a subject, always a subject.”

France does not now recognize the right of her citizens to emigrate except under certain conditions, and a Frenchman naturalized in a foreign country can eventually be prosecuted in France, and even condemed to death.

The Imperial Government of Russia does not recognize the right of its citizens to emigrate without special authority. According to the terms of article 325 of the penal code any person who, having gone abroad, takes service there without the authority of Government, or who becomes naturalized, incurs the loss of all his civil rights and perpetual banishment. If he returns to Russia he would be transported to Siberia.

This law is altogether general in its purport and is applicable without discrimination to Russian subjects who may have become naturalized in any country whatsoever. Its application to the case of Lipszyc cannot, therefore, be regarded as a grievance towards the United States.

In regard to Lipszyc’s papers, it is necessary to form a just idea of the value they may have in Russia.

That these papers were legally delivered by the American authorities there can be no subject for doubt. The Government of the United States grants naturalization on the request of any person domiciled in the States who fulfills the requirements of the American law on naturalization.

It furnishes him with documents which, setting forth his capacity of citizen of the United States, guaranty to him its advantages. The act of naturalization being according to law the papers have a legal value in America.

On the other hand, a fundamental law of the Empire forbids Russian subjects to change their nationality, and every infraction of this law is punished as a crime.

A person inscribed on the registers of population as a Russian subject, unless especially authorized to emigrate, is and always remains a Russian subject, whether he wishes it or not. He could not hold an authentic foreign passport without violation of the law. His papers, therefore, can have no legal value in Russia; they tend to prove his guilt without changing anything in his position as a Russian subject. While an American law has conferred upon him the rights of American citizenship, a Russian law considers him as having preserved the status of a Russian subject. There is a conflict then between the legislations of the two countries, but in the opinion of the Imperial Government without the possibility resulting therefrom of the least alteration of the good relations of the two Governments.

The situation is altogether the same on both sides. As Russia could not pretend that a law of the Empire should hinder action of the laws in the United States, so the United States can not demand that a Russian law should be amended or abolished in its effects by reason of an American law. When a Russian subject becomes naturalized in America as a citizen, the Government of the United States ignores the Russian law, which forbids him the act, and which always holds him to be a Russian subject.

It he returns to Russia he naturally falls back under the penalty of the Russian law, and the Imperial Government could not recognize in him the standing acquired contrary to the dispositions of its own laws.

Nevertheless, on closer examination of the question, it is easy to perceive that the conflict above indicated between the Russian and the American legislations is but apparent, and can cause no real difficulty.

In fact the Government of the United States confers naturalization on a foreign subject without inquiring into the laws of the country to which he belongs; but it only does so at the request of the foreigner.

It is for him to know what he loses on quitting the citizenship of his own country, and to judge if the advantages which he counts on by his change will sufficiently compensate him for his losses. A Russian naturalized in the United States knows, or ought to know, that he can not return to Russia without danger of criminal punishment. If he returns, all the same, it is at his risk and peril.

[Page 961]

The complaint of the United States in this case appears all the less founded, as by one of the provisions of the treaty of 1832 the difference between an American citizen, formerly a Russian subject, and every other citizen of the United States has already been clearly established. Article 10 of that treaty, in determining the rights of the respective citizens or subjects in regard to inheritance, stipulates at the same time that “this article shall not derogate in any manner from the force of the laws already published or which may hereafter be published by His Majesty the Emperor of sail the Russias to prevent the emigration of his subjects.”

In bringing the foregoing to your notice, Mr. Minister, I venture to indulge the hope that you will admit that in the case of Lipszyc the Imperial Government has but conformed to the formal provisions of the laws of the Empire, and has in no manner derogated from the principles of equity and of law which should exist in the amicable relations between Russia and the United States.

Receive, Mr. Minister, etc.,

[Inclosure 3 in No. 114.]

Mr. Lothrop to M. de Giers.

Your Excellency: I duly received your note of April 11–23 in answer to mine of March 27–April 8. I beg to express to your excellency my high appreciation of the considerate attention you have given to the case of Adolph Lipszyc, and for your courteous statement of the views of the Imperial Government relative to his naturalization in the United States.

In submitting to you some further observations which seem to me pertinent, I should say at the outset that, as I understand it, to a certain extent my Government is in cordial agreement with you.

The United States fully assents to the doctrine that to every country belongs the exclusive management of its domestic affairs. No political principle is held more sacred than this in America. It also agrees that all who enter a country become subject to the laws and tribunals of that country for all acts done while remaining there. It also agrees that to every country belongs the exclusive right to prescribe and enforce its relations with its own subjects or citizens. So long as a man remains in the land of his birth he certainly owes it allegiance, and must recognize the obligations and duties imposed by its laws. This allegiance, of course, continues until rightfully transferred to, and accepted by, another government.

Here the divergence obviously begins. The United States insists that it is neither just nor practical, especially under the conditions of modern society, to assume that native allegiance is a perpetual bond which can not be renounced.

The position of the United States is that when a man has actually expatriated himself, and by naturalization has assumed allegiance to an adopted country, his political situation is completely changed. Citizenship is a personal condition and attends an individual wherever he goes. From the nature of the case he can not owe a twofold allegiance. He can not, at one and the same time, be one thing at Athens and another at Rome, but must bear the same national character everywhere. Naturalization of course implies the renunciation of the former allegiance and the assumption, of a new allegiance. This act therefore necessarily affects his relations to two Governments, and what was before limited to questions of purely domestic concern may thus be raised to international importance. It seems to me, with great deference, that it obviously presents something more than the ordinary case of all conflict of laws, spoken of by your excellency. Such conflicts usually concern only private and individual rights. A conflict between states as to citizenship involves a conflict as to allegiance, which is, of course, of the highest public concern.

In ordinary cases of conflict of laws it is readily recognized that each country, within its own territorial jurisdiction, may administer its own laws without any just ground of offense to any other. But when a conflict as to the right of naturalization arises, the question of private rights is almost necessarily merged in the paramount question of the rights of the State.

It seems to me that it is only by great discretion that conflict on so delicate a subject can fail to endanger harmonious relations. It gives me great pleasure here to say, that the judicious consideration extended by the Imperial Government in cases of this kind has hitherto happily averted unpleasant feelings.

In a previous letter I have pointed out that the views of the United States are not at all of a theoretical or sentimental character. They are of the most practical and vital character, for a very large portion of its best citizens hold their citizenship by naturalization.

[Page 962]

It would be quite irrelevant for me to discuss here the origin or extent of the doctrine of indelible allegiance. But it seems proper to notice that your excellency seems to have been led into an error as to the position of the question in the United States. It is true that it was only in 1868 that the natural right of expatriation was declared formally by act of Congress, but this was never intended or understood as the declaration of a new principle. It was only intended as a solemn declaration of a fundamental principle. I can declare, on the highest authority, that no other doctrine, has ever been held, from the foundation of the Government, by any of its political departments, and this is a question which pertains especially to the political departments of the Government. It was one of the questions which led to our war of 1818 with Great Britain, and though it remained unsettled at the close of that war, yet it was not thereafter asserted with the former arrogance. So much doubt, indeed, was! thrown on the question that, finally, in 1868, it was referred to a commission of England’s most eminent jurists and statesmen, who unanimously reported that the doctrine “once a subject always a subject,” was “neither reasonable nor convenient,” and that it “was at variance with those principles on which the rights and duties of a subject should be deemed to rest.” Under this decisive condemnation the doctrine, as your excellency is aware, disappeared from British law.

As to the law of France on this important subject, though aware of some obscurity about it, I have not understood it quite as stated by your excellency. The Code Napoleon expressly declared French citizenship to be lost by foreign naturalization. I am informed that by some subsequent laws, Frenchmen acquiring foreign naturalization without leave were subjected to the penalty of confiscation of property and to deportation from the Kingdom. In 1860, however, in his annual message, president Buchanan was able to declare, on the authority of the French minister of war and the decisions of the French courts, that France recognized the right of expatriation. But in the disturbed period about 1870, it seems that some law or regulation was adopted, that where a person conscripted failed to appear, he might be prosecuted for “insoumission.” If it appeared that he had been naturalized abroad for three years or more, he was discharged; if for a less time, he might be imprisoned for a short period. I am not aware that even this modified regulation has been enforced of late years.

I also note your protest that the treaty of 1832 does not recognize the lawfulness of the naturalization of Russian subjects by the United States.

Without further discussing the point at this time, I should state that my Government has supposed it did so recognize such naturalization; and I may add that it seems to me that the emigration clause, at the end of the 10th article, may be given full force without ascribing to it the meaning given in your note. Certainly the United States never for a moment questioned that the right to regulate and control the emigration of its subjects was within the exclusive domain of the Imperial Government. This it regards as an incident of territorial sovereignty to be exercised within territorial limits, but not as following the subject into foreign countries.

I regret that I can not assent to your excellency’s position that Lopszyc’s. naturalization papers, though valid in America, are valueless in Russia. They are valid in America only because they recognize a valid national not, and in the hands of a naturalized citizen they are the peaceful evidence of his citizenship. If the Imperial Government claims that the act of naturalization violates its rights, it might properly demand of the United States that the papers should be revoked and withdrawn. But to seize and confiscate such papers, when no unlawful use has been made of them, items to be wholly unnecessary and to be an exercise of power of which the United States may justly complain.

In taking leave of the legal aspects of this ease, as they present themselves to me on principles alike just and convenient, I beg for a moment to ask whether the following may not justify your indulgent consideration. It is now over twenty five years since Lipszyc left Russia and he has ever since lived in the United States. Even if he is guilty of an offense in acquiring naturalization may it not now, after this lapse of time, be condoned?

I am also informed that the Emptor on his accession to the throne, or at his coronation, graciously made a grant of amnesty or pardon which would include the offence charged against Lipszyc.

I have never seen a copy of this imperial act, and my information may be incorrect, But I beg respectfully to call attention to it. At the same time permit me to say that I should be greatly obliged if your excellency could furnish me an English or French translation of His Majesty’s grant aforesaid.

I beg, etc.,

Geo. V. N. Lothrop.