Mr. Broadhead to Mr. Gresham.

No. 54.]

Sir: I have the honor to submit the following matter for the information of the State Department, and for such instruction as may be thought proper by you to give me in the case.

Fred Tschudy, a native of the Republic of Switzerland, emigrated to the United States in June, 1888, when he was a minor, and upon his arriving at age he was naturalized by the court of common pleas at Camden, N. J., on the 17th day of October, 1893, and on the 25th of October, 1893, he left the United States on a visit to Europe, arriving at Antwerp on the 8th of November, 1893. Thence he proceeded to Winterthur, in the canton of Zurich, where his father and mother resided.

On the 9th of June, 1894, upon his application I gave him a passport as a naturalized citizen of the United States, on his presenting his certificate of naturalization. He was then temporarily residing at Winterthur.

Sometime during the month of July or early in this month he was, by the authorities of the canton of Zurich, ordered to the recruiting service for the 23d of August at Winterthur.

Mr. Tschudy complained to me about the matter, told me that he showed the officer his passport and his certificate of naturalization, but that no regard was paid to them; he has paid the military tax for the time he was absent in the United States after he became of age, the receipts for which he showed me. Thereupon I addressed a note to the President of the Confederation, who is also chief of the military department, of the date of the 6th of August, in regard to the case of Mr. Tschudy, asking that the matter be inquired into, and that he be relieved from the performance of military service, and stating the fact that he was a naturalized citizen of the United States, and that I had given him a passport as such. A copy of my note to the President is herewith inclosed (No. 1).

On the 15th of August I received a note of the date of August 14, from Mr. Lachenal, the chief of the department of foreign affairs of the Confederation, a copy of which is herewith inclosed (No. 2), in which, answering my note addressed to the President, he says that Mr. Tschudy can not be excused from presenting himself on the 23d of next August to the council of revision of Winterthur, for the reason that he is still a Swiss citizen and can not, therefore, invoke in Switzerland the protection of the State of which he has also acquired the right of citizenship.

I replied to Mr. Lachenal by note of the 17th of August, a copy of which is herewith inclosed (No. 3), in which I stated what I conceived to be the uniform and inflexible doctrine of the United States on the subject of the right of expatriation, and the construction which should be given to the existing treaty between the two nations.

Mr. Tschudy informs me that he has offered to pay the military tax for the year 1894, but that the authorities here refused to receive it. The important matter, however, is that his certificate of naturalization and his passport have been repudiated as of no effect here, and as giving him no right of protection by the United States Government.

In my reply to Mr. Lachenal’s note I have been governed by the provisions [Page 684] of sections 1999 and 2000 of our Revised Code, in the former of which our Government asserts the right of expatriation, which has always been maintained from the foundation of our Republic, and in the latter declares that all naturalized citizens of the United States shall receive from this Government the same protection of person and property which is accorded to native-born citizens.

I refer also to the letter of Mr. Evarts to Mr. Fish, of the date of November 12, 1879,1 where a similar question arose in regard to the removal of property by a naturalized citizen of the United States who was a native of Switzerland, and also to the letters of Mr. Freling-huysen to Mr. Cramer, of the dates of December 19, 1882, and of July 28, 1883, and also to the letter of Mr. Bayard to Mr. Cox, of the date of November 28, 1885, in which last case the Sublime Porte set up the same claim to the perpetual allegiance of its subjects that is now maintained by the Republic of Switzerland. I shall keep the Department informed as to what final action is taken by the Swiss Government in Mr. Tschudy’s case, and in the mean time I respectfully ask for instructions on the subject.

Most respectfully, etc.,

James O. Broadhead.
[Inclosure 1 in No. 54.]

Mr. Broadhead to Mr. Frey.

Sir: I have the honor to inform you that Fred. Tschudy, a native of Switzerland but a naturalized citizen of the United States and now temporarily residing at Winterthur, in the Canton of Zurich, states to me that he has been ordered to the recruiting service on the 23d of this month.

Mr. Tschudy emigrated to the United States in June, 1888, when he was a minor, and upon his arriving of age he was naturalized by the court of common pleas at Camden, N. J., on the 17th day of October, 3893, and on the 25th day of October, 1893, he left the United States, and arrived at Antwerp on the 8th day of November, 1893. On the 6th day of June, 1894, he was given a passport by this legation as a naturalized citizen of the United States, and was at the time temporarily residing at Winterthur. He tells me that he has paid the military tax provided for by the treaty between the two nations, but that the authorities of the canton of Zurich still require of him military service. I submit most respectfully that this requirement can not be had of Mr. Tschudy, inasmuch as he has been duly naturalized under the laws of the United States; and I ask that the matter maybe inquired into, and that Mr. Tschudy be relieved from the performance of military service.

With high regard, I am, etc.,

James O. Broadhead.
[Page 685]
[Inclosure 2 in No. 54.—Translation.]

Mr. Lachenal to Mr. Broadhead.

No. 4105.]

Mr. Minister: In response to your note of the 6th of this month addressed to the President of the Confederation, I have the honor of informing you that Mr. Fred. Tschudy can not be excused from presenting himself the 23d of next August to the council of revision at Winterthur, on account of his still possessing Swiss nationality. In this capacity he can not, therefore, invoke in Switzerland the protection of the State of which he has also acquired the right of citizenship.

Please accept, etc.,

Lachenal,
Chief of the Federal Department of Foreign Affairs.
[Inclosure 3 in No. 54.]

Mr. Broadhead to Mr. Lachenal.

Sir: Your communication of the 14th instant in regard to the case of Mr. Fred. Tschudy has been received.

In answer to my letter of the 6th instant to President Frey you say that Mr. Tschudy can not be relieved from presenting himself on the 23d of August before the board of revision at Winterthur on account of his still possessing Swiss nationality; and on that account he can not invoke in Switzerland the protection of the state of which he has elsewhere acquired the right of citizenship.

While not undertaking to dispute the general proposition of the right of the Swiss Government to deny to its citizens the liberty of casting off their national character without its consent, I take this occasion to say, with all due respect and in all kindness, that the treaty stipulations existing between the two nations are, in my judgment, inconsistent with the course proposed to be pursued in the case of Mr. Tschudy.

The United States has always maintained the right of expatriation and denied the doctrine of perpetual allegiance; we have always denied that a full-grown man is, like the trees of the forest, rooted to the soil, without thought or feeling or the ambition to better his condition; or that he is not at liberty to make an effort to that end in other lands where his labor will be more profitable or his intellectual energies will reap a better reward and insure a higher development.

Whether, in the opinion of others, this political philosophy be true or false, the fact that the United States maintained it from the very birth of our Republic, and still adheres to it, was well known to the other civilized nations at the time when our treaty with Switzerland was ratified; and it was equally well known that the United States Government claimed and exercised the right of naturalizing aliens and of exacting from them, as a condition of naturalization, an oath that they renounce forever all allegiance to every foreign prince, potentate, or power, without any condition, as provided by the naturalization laws of some other nations; that when within the limits of the foreign state of [Page 686] which they were previously subject they should not be deemed citizens of the United States unless they had ceased to be subjects of such foreign state, in pursuance of the laws thereof.

When, therefore, it was provided by article 2 of the treaty of November, 1855, above referred to, that “the citizens of one of the two countries residing or established in the other shall be free from military service,” but shall be liable to a pecuniary contribution by way of compensation, it must be held to include all United States citizens, whether native born or naturalized.

If they are citizens of Switzerland according to the laws of Switzerland, they are none the less citizens of the United States according to the laws of the United States. To say that they are not citizens of the United States because they are citizens of Switzerland is a begging of the question (petitio principii).

In the absence of any qualification or explanation of the word citizens as used in the second article of the treaty, a fair interpretation of the language used must be held to include all citizens, whether native-born or naturalized, and of whatever nationality, unless there was something in the nature of the treaty or in the circumstances surrounding the parties at the time of its ratification that would confine it to one class of citizens; and that is exactly the case here, for there was no need of a treaty stipulation exempting native-born citizens of the United States from military service in Switzerland, for surely it could not be claimed that a native-born citizen of the United States or a naturalized citizen of the United States, a native of some other country, who had never owed allegiance to the Government of Switzerland, would be subject to military service whilst temporarily residing in Switzerland. The treaty must therefore have referred to natives of Switzerland who by the laws of that country were subject to military service, but having been naturalized in the United States are by the terms of the treaty exempt from military service, but must pay pecuniary contribution by way of compensation. There could have been no other object or purpose in making the stipulation.

In this particular case I shall, if I find an occasion, advise Mr. Tschudy to submit himself to the authorities of the Republic here, and in the meantime ask instructions from my Government on the subject.

With sentiments, etc.,

James O. Broadhead.