No. 359.
Mr. McLane to Mr. Bayard.

No. 538.]

Sir: I have the honor to send herewith copy of a note addressed to Mr. Flourens, on the 11th instant, with reference to the vexed question of the protection of American citizens of French origin, from whom military service is claimed when they visit France.

As you have been made aware by previous correspondence from this legation, there are now two American citizens of French parentage serving in the French army—Pierre Arbios, of California, and John Fruchier, of Nevada. If there is not a third (Albert F. Gendrot) it is because he has escaped after being arrested. You are also aware that when this legation applies for the discharge of an American of this category, the French Government requires that proof be made of his foreign citizenship before a court of justice, and admits that if such proof is made the man is entitled to his discharge.

In my note to Mr. Flourens I contend that when the United States Government claims an individual as a naturalized American citizen the evidence of this fact is established, and I decline to go before any court of justice to furnish a proof which is already in the possession of the Government and which it is at liberty to accept if willing to do so. I therefore renewed formally my application for the discharge of the two naturalized Americans now in the French army, and I asked for the release from all military obligation of the natural-born American claimed as French, demanding for the latter the same rights of citizenship conceded by the French Government to the naturalized American.

My note closes with an effort to impress upon Mr. Flourens the necessity of coming to some equitable arrangement with reference to cases of this kind, and I have pledged myself to consider in a friendly spirit any proposition he may be disposed to make to reach that end.

The conversations I have had with him on this subject, and the information furnished to the legation by the foreign office, lead me to believe that some kind of agreement may be made as to the mode of establishing the naturalization of those claimed as Americans. Mr. Flourens admitted to me that there should be some other means of making known to the war department that a man claiming to have renounced his French citizenship has really done so than by appealing to the courts; but he stated that in matters of this kind the Government had to defer greatly to the opinion of the minister of war.

With reference to American-born citizens whose fathers were French, Mr. Flourens showed no disposition to yield) the ruling principle of France, he said, was that the nationality was derived from parentage and not from the place of birth. I did not press him upon this point, because I am satisfied that if he makes any concession concerning naturalized French Americans he will have also to concede something concerning natural born Americans of French parentage.

An early reply to my communication can hardly be expected.

I have, etc.,

Robert M. McLane.
[Page 503]
[Inclosure in No. 538.]

Mr. McLane to Mr. Flourens.

Sir: I had just read your excellency’s communication to Mr. Vignaud, of the 28th of December last, in reply to his reiterated request that Albert Gendrot, a natural-born citizen of the United States, be recognized as such. Your excellency declines to do so, and refers me to the courts of justice.

I had hoped that, owing to the circumstances of the case, the Government of the French Republic would have responded in a more liberal spirit to this request, and I must not conceal from your excellency that this decision is for me a cause of profound regret. I could let the matter rest there, but it would then be the painful duty of my Government to advise its citizens of French origin that it is powerless to prevent their being arrested and impressed into the French military service should they visit France, and that alone among all natural-born Americans those who happen to have a French father do not find under the jurisdiction of the French Republic the protection extended everywhere to every American citizen. But I owe it to myself, as well as to the Government of the French Republic, with which I desire to entertain the most cordial relations, to make another effort to conciliate you, or at least to invite your attention to the attitude taken towards the United States.

Moreover, it is necessary that our respective situations be clearly defined in this matter. Gendrot is not the only American impressed into the French military service. Pierre Arbios and John Fruchier, in reference to whom this legation has already addressed your department, are in the same case; and since your excellency furnishes me with an occasion of so doing, I propose to examine the treatment to which Americans of this class are subjected in France.

It is impossible that two friendly and enlightened Governments, such as yours and mine, should be compelled to exchange an entire correspondence each time an American of French origin, claimed to be liable to military service, ventures to set his foot in France. There must be some equitable mode of settling the position of those who are thus situated, and if you are disposed to discuss this matter with the conciliatory spirit which guides me, we should not fail to come to a satisfactory and necessary arrangement.

As the case now stands, he that is born of a French father in the United States, or the Frenchman who has emigrated there while young and has been naturalized, can not return to France without being immediately arrested, imprisoned, and sometimes roughly treated for having failed to perform military service. In vain he protests and produces his papers; he is not listened to; no attention is paid either to his passport, given by a friendly nation, or to his naturalization certificate, duly viséed by this legation, and he is brought before a court-martial, which leaves him no other alternative than to submit himself to the obligations of the military service of a country which is not his own, or to apply to a civil tribunal to have his foreign nationality established.

Reduced to this extremity, and very often having neither the means nor the knowledge necessary to bring his case before a court of justice, this American submits to the outrage, and allows himself to be conducted to the regiment.

One resource remains to him, however. Having come to France relying upon a passport promising him the protection of his Government and that of friendly countries, he appeals to his diplomatic representative at Paris, who, after having satisfied himself that he has to do with one of his countrymen whose rights are incontestable, demands of you that his name be struck from the French military rolls.

Unfortunately your excellency always replies that questions of personal status do not belong to the jurisdiction of the administration, but to that of the judiciary.

Thus, for example, on the 9th of November, 1886, I asked for the discharge of Pierre Arbios, a Frenchman by origin but an American by naturalization, who, notwithstanding this character, was enrolled in the army. The 5th of May last (1887) I made a similar demand in behalf of John Fruchier, and October 25 I applied in the same manner for Gendrot.

The cases of the two first named are almost identical. Both emigrated to the United States when minors; both established themselves there in a permanent manner and regularly acquired American citizenship, although in different ways; Arbios by the fact of the naturalization of his father; Fruchier by direct naturalization. As for Gendrot, he is a natural-born Amercan, whose father is a Frenchman. Coming to France provided with all their papers and with the purpose of making only a temporary sojourn there, they were arrested, imprisoned, and brought before the military authorities, who sent them all three to the army; Arbios to the One Hundredth Regiment, and Fruchier to the Seventh, where they still are, and Gendrot to another.

To the complaints which I addressed to you respecting these three Americans your [Page 504] excellency, in behalf of the minister of war, gave me the reply which I spoke of above, and which is invariably made me in cases of this kind—namely, that the courts should be applied to.

Your excellency could not have meant to tell me that the Government of the Republic is incompetent to decide whether an individual is or is not French; for although all questions of personal status might not come within the jurisdiction of the administration, those which refer to nationality are particularly within this jurisdiction, especially when they arise between two governments.

When a simple individual claims to be a foreigner before the military authorities, it is reasonable that he should be required to prove this before judicial authorities, for soldiers are not ordinarily jurisconsults, and they may not be in a position to decide upon the proofs of foreign nationality which are presented to them.

But when it is a government which makes the claim on another government this manner of proceeding can no longer be justified, for a government might be offended at being asked to prove judicially the fact which it affirms, and, furthermore, the very character of the fact in question is such that it is not possible to establish it by a more direct proof than the affirmation of the government.

When the Government of the United States declares that Pierre Arbios, John Fruchier, and Albert Gendrot are American citizens, and claims them as such, the proof of their foreign nationality ought to be considered as conclusive. A French tribunal can never contest this proof nor add anything to it, because it is an admitted principle that the government which grants the naturalization is the only judge of the conditions upon which it does so.

I beg you to remark that I do not contest the principle, equally sound, that each government is the only judge of the conditions upon which citizenship is lost. I admit then perfectly that the Government of the Republic may make to me one or the other of these two replies: Arbios, Fruchier, and Gendrot remain for us French, in spite of their American citizenship, as determined by American law; or, again, Arbios, Fruchier, and Gendrot are under, the obligation of performing military service in France, although they may be French no longer. But you give me neither the one nor the other of these answers. You tell me, on the contrary, very clearly that it is; sufficient to prove the foreign nationality of these three men to free them from military service. This proof being at hand, I ask myself why your excellency sends me; to a judicial tribunal?

No legislation that I know of makes this procedure obligatory. No Jaw obliges the war department to insist that he who claims to be a foreigner should produce this? particular proof of his foreign nationality.

I fully admit that the foreign nationality must be established to the satisfaction of the war department, but it does not follow that this fact can not be established in another manner than by the production of a judgment of a French civil tribunal. The minister of war says that he can not act otherwise, but that is plainly a form of speech.

The minister means that it is the rule which he has laid down to cover his responsibility, and that he does not think he can depart from it. What he has the right to insist upon is that the exemption claimed should be clearly proved, and if he sends the person claiming it to civil courts, it is because in most cases it is a means, easy and efficacious, of covering his own responsibility. But he can act otherwise; audi he does act otherwise; it is not only he who has this authority; the general commanding the corps in which the foreigner has been enrolled can order his discharge; the court-martial before which the interested party is brought can do the same thing, and has done it.

The only question, then, for the superior military authorities is to have the certainty that the person who asserts his foreign nationality in order to avoid military service is really a foreigner. Now, this certainty is acquired when the Government of the Republic is confronted by an official demand of another Government claiming; one of its citizens.

To a demand of this kind it can be replied, as I have said, that the person claimed preserves, in spite of his foreign naturalization, his original nationality; or, again, that his foreign nationality does not exempt him from military service; but it must, not and can not be said that the proof of the foreign nationality is still to be made, since this demand itself is a proof of it.

Shall I dare add that not only nothing compels the war department to adopt the attitude which it does adopt, but that the law seems, on the contrary, to prescribe a different one. In fact, the law says no one but a Frenchman is allowed to enter the French army.

There is here a peremptory rule which does not admit of exception, and you can not consider it wrong that my Government should claim the benefit of it.

The cases of Arbios, Fruchier, and Gendrot fall exactly within the scope of this law. Since the 9th November, 1886, in the case of the former; since the 5th May, 1887, in the case of the second; and since October 25 as for the third, the Government of the Republic possesses the official and certain knowledge that these three men are [Page 505] foreigners; and yet, notwithstanding the friendly hut formal and precise claim of the American Government, two of them are kept in the ranks of the French national army, where their presence is at the same time contrary to the principle which does not permit the flag of France to be defended by any but Frenchmen, and derogatory to the dignity of the United States, whose sovereignty is disowned in the persons of these American citizens impressed into the service of a country which is not their own.

Perhaps I will be told that it is not only to make proof of his foreign citizenship that the person claimed by another Government is sent before the civil tribunal, but that it is also to decide whether, according to the law of the country of his origin, he has legally lost his original national character. This is a proposition that I will not dispute, for it is founded on the principle that I have already admitted, to wit, that the country of origin is the only judge of the conditions upon which its citizens lose that character; but please note that for Governments like ours, which do not admit perpetual allegiance, this rule only finds its application in one single case—where the liberty and free will of the individual claimed as a foreigner has not been respected. For the same reason that it is not admitted in free countries that a man can be retained against his will and forever in the bonds of the nationality in which accident has caused him to be born, it can not be admitted that this same man can be deprived of his original nationality and vested with another without his consent. In cases of this kind the refusal of the country of origin to recognize the naturalization thus conferred becomes a duty.

Let us take two hypothetical cases. A son of a Frencnman who is born in France and who became an American while still a minor by the fact of the naturalization of his father, desires to assume the original nationality of his father.

The United States claim him as an American. You refuse to give him up.

A son of a Frenchman born in the United States desires to remain of the nationality of the country of his birth. You claim him as a Frenchman; the United States refuse to admit that you can do so. It is the same thing if he was born in the United States. The accident of his birth on American soil can not bind him indefinitely to America, and he ought to preserve the right of adhering to the nationality of his father if he so desires. The reverse proposition is of necessity also quite true.

If this son of a Frenchman afterwards approves, with full knowledge of what he is doing, the change of citizenship made by his father, or if he accepts the natural allegiance due to the country of birth until it has been formally renounced, nothing ought to interfere with his liberty of action.

When the naturalized American or the natural-born American belonging to this category claims in France to be an alien, and does so in full accord with the American Government, the element necessary to the validity of contracts—freedom of action—is present. There is consent, sanction, acquiescence, and thenceforth the country of origin can only ground its claim upon that man on the doctrine of perpetual allegiance; that is to say, in denying the inalienable rights that the French Revolution and the American Revolution have forever consecrated, the one possessed by every man, of choosing another country wherever he may find the conditions of happiness and prosperity.

I do not apprehend that you will take such an attitude. The country which received from America the “bill of rights,” to make of it a beacon light for the world, can not tell them to-day that it does not recognize the validity of the proceedings by which a Frenchman has become American of his own free will.

I know very well that there exists an old decree inflicting certain penalties upon Frenchmen who abandon their nationality without the authorization of the Government; but this decree allows, nevertheless, the naturalizations thus acquired to stand; it is not therefore applicable under existing circumstances.

Thus, while it is admitted that the country of origin is the only judge of the terms upon which its citizens lose this character, the tribunal to which your excellency refers me to establish the nationality of those I claim as Americans, can not deny to them this character, because it is not denied that the Frenchman who, with or without the authorization of his Government, is naturalized abroad, loses his original nationality and becomes thereby unfit to perform military service, nor can that tribunal assume to pass upon the conditions on which this naturalization was acquired, because it is equally unquestioned that the country which grants citizenship, freely accepted, does so in its sovereign capacity and upon terms of which it is the sole judge.

It is therefore true to say that, in referring me to the courts, as your excellency does each time I present a claim of this kind, the Government of the Republic holds me to a useless procedure which is not prescribed by law, and to which I can not lend myself, because it might lead to unpleasant consequences.

Let us suppose that I proceed in such a way and that the court to which I apply decides that proof is not made of the American naturalization of the party I claim: What will then be the situation of our respective Governments? Mine will be obliged [Page 506] either to acknowledge that its affirmation is not sufficient to establish the validity of a naturalization title granted by itself, or to refuse formally to allow such a pretension. Yours must defend this exorbitant pretension or disavow the tribunal which has made it. For my part I shall not expose my Government to be placed in such a position, and I respectfully decline to take the responsibility of engaging it in such a proceeding.

The Government of the United States is entitled to expect from the Government of the French Republic a treatment more equitable, more friendly, more liberal, and particularly more in harmony with the great principles of political freedom which they represent in the world. Does not the consideration that civilized nations owe to each other as well as to their reciprocal interests command respect for the naturalization granted by one of them?

Why retain, against his will, the man who of his own accord has severed the ties which bound him to the country of his origin and contracted others? Such a man could make neither a good citizen nor a good soldier. To compel him to perform military service is to violate in his person one of the undeniable rights of man and to have slight regard for what is due to the nation which has received him.

I dare hope that your excellency will take into serious consideration the friendly representations which I have just made, and that, appreciating the rights and duties which are incumbent upon our two Governments, respectively, in the present circumstances, you will accord to the United States that which I again have the honor of asking:

The discharge of Pierre Arbios and of John Fruchier, American citizens wrongfully detained to-day under the French flag; one in the Hundredth Regiment of Infantry and the other in the Seventh.
The erasure from the military rolls of the name of Albert Gendrot, a natural-born American, invested with French citizenship without his consent and knowledge.

The Government of the Republic would put an end to complaints of this kind, which I am frequently called upon to make, if it would consent to come to some agreement with me as to the line of conduct to follow in order to regulate the situation of Frenchmen who have become Americans. Would it not be possible, for instance, to fix a time after which Frenchmen who become naturalized in the United States might visit France without being molested, and to come to some agreement with respect to the papers they would have to produce to establish that they are Americans? I am disposed to consider favorably any suggestion which may be made with reference to this matter, and your excellency can rest assured that I shall willingly lend myself to any arrangement which would protect the rights and dignity of our two Governments, and that I shall never attempt to extend the protection of the United States to persons who have not legitimately acquired a right to it. My Government has no more sympathy than I have myself for those citizens who throw off their nationality solely in order to escape the just obligations which it entails, and who would make no better Americans than Frenchmen.

I avail, etc.,

Robert M. McLane.