No. 364.
Mr. Bayard
to Mr. McLane.
Washington , February 15, 1888.
Sir: I have before me your No. 538, of January 24, 1888, inclosing your note of January 11, 1888, to Mr. Flourens, and I am happy to acknowledge the zeal and ability which this note displays.
Your remarks in this note are directed in turn to three distinct phases of fact: (1) That of native-born citizens of the United States not [Page 511] of French parentage; (2) that of persons born in the United States of French parentage;(3) that of naturalized citizens of the United States who were born in France.
As to the first class, no question as to military duty in France could arise unless they should voluntarily become French citizens by expatriation.
As to the second class (persons born in the United States of French parents), the rule is that while such persons remain in the United States they are citizens of the United States; but that should they go to France, and there, when they arrive at the age of twenty-one, elect to be French citizens, they lose all claim to the protection of the United States.
It has further been repeatedly held by us, as you are aware, that when a person thus born in the United States arrives at twenty-one in a foreign country the mode of expressing his election to be a citizen of the United States is by promptly returning to the United States. The same distinction is applied to children born abroad to the citizens of the United States. There is, in both these cases, what is called double allegiance; and by the law of nations the nationality of such persons is to be determined by their own election of nationality at their majority, which election is evidenced by placing themselves in the country they elect. Should such persons after electing the United States, and here taking up their domicil, go to France for a transient visit, it will be your duty to protect them as citizens of the United States.
As to the third class (French citizens by birth, who are naturalized in the United States), to whom your note chiefly relates, I have simply to say that the Department sustains the position taken by you, on the ground that when it presents a certificate of naturalization to a foreign government, such a presentation is a certificate of such naturalization, putting it on the basis of a judgment of a competent domestic court, certified as such by the executive. It is a well-settled principle that judgments duly entered in a competent court having jurisdiction, duly certified to be such by the executive, are ubiquitous in their effect; and eminently is this the case with judgments of naturalization, which are bound up so intimately with national honor and polity. Hence it is that it has been uniformly held by this Department that while, on the application of a foreign government, it will cause inquiries to be made as to whether a judgment of naturalization was improvidently granted, and while it will never permit itself to grant protection based upon a naturalization decree which is shown to it to be fraudulent, it will not recognize a foreign government’s right to impeach such decrees. When set up by it as the basis of its action towards a foreign state, it can not recognize the right of any foreign executive or court to determine as to their validity. That determination must be made, so far as concerns foreign governments, exclusively by itself.
Whether, in case the validity of naturalization in the last-mentioned cases is admitted, the person so naturalized is subject to penalties on returning to France for offenses or neglects of duty with which he was chargeable before he left France, is a question dependent upon many conditions which it is not necessary here to discuss, and which can only be determined in relation to each particular case as it arises.
It will be your duty, therefore, to inform Mr. Flourens that the Government of the United States holds that a decree of naturalization granted by it to a French citizen is not open to impeachment by the French Government, either in its executive or its judicial branch, and that if it is alleged to have been improvidently issued the remedy is by [Page 512] application to this Department. You will further say that if the subjection to forced military service of the citizens whose case you report is based upon an assumption that they are not citizens of the United States, this Department asks for their immediate release, and for a proper compensation for the losses which they have received by such detention.
A further consideration, which might be urged upon the French Government in relation to this subject is the great importance which this Department attaches to summary action in these cases. It can not be admitted that American citizens, not charged with any crime, should be detained under arrest for even a single day after their proofs of citizenship have been presented. In cases like this the United States can never admit the propriety of submitting to the ordinary delays of judicial action. The redress which it thus asks the United States Government, when appealed to by foreign Governments under similar circumstances, has always been promptly given.
In our late civil war, when the Government of the United States was compelled to use every just effort to put down the insurrection by which its existence was assailed, and when in the application of its conscription acts it was compelled to consider many cases of aliens on its shores, there is not a single instance in which an alien was held to military duty when his Government called for his release. There are very few naturalized citizens of the United States of French birth in France. Of their aid as soldiers, France, with her immense resources, can not claim the need.
Again, the trade between France and the United States, so far as concerns the selection of French, goods, is largely conducted by merchants of French birth, naturalized in the United States, who are in the habit of paying frequent visits to France in the course of their business, for the purpose of placing orders with French manufacturers. Yet, those very men, if the principle I protest against is applied, will be shut off from the visits to France, which their peculiar gifts have enabled them to use with results so beneficial both to France and the United States. Therefore I can not but think that France, who now accepts as fully as does the United States those principles of liberty of which the right of expatriation is part, will not, in view both of her past and her present relations to the United States, take a position conflicting with these free principles, with the business interests of both countries, with international comity, and with a system on which the Government of the United States is based.
You will call on the minister for foreign affairs, read this instruction to him, and, should he desire it, leave a copy.
I am, etc.,