Mr. Peak to Mr.
Olney.
Legation of the United States,
Berne, February 3,
1897. (Received Feb. 15.)
No. 71.]Sir: I have the honor to acknowledge the
receipt of the Department’s dispatch, No. 54, of date of October 27,
1896, in relation to the rights of naturalized citizens of the United
States of Swiss origin in Switzerland, and the repeated but ineffectual
efforts of the United States to secure a naturalization convention with
a Swiss Government for the better security and protection those rights,
and referring to the report made in May, 1888, by the commission
appointed by the Swiss National Council, recommending that the “Swiss
Federal Council enter into a consideration of the convention proposed,”
and instructing me to secure copies of the report in question for my own
use and that of the Department, with a view to reopening negotiations
for a naturalization convention should a favorable disposition thereto
on the part of the Federal Council be discernible.
I have the honor to report that immediately upon the receipt of the
Department’s dispatch I called upon the President of the Swiss
Conferation, and also upon Colonel Frey, a member of the Swiss Federal
Council, and explained to each of them that the United States would feel
inclined to reopen negotiations for a naturalization convention with
Switzerland, provided a favorable disposition thereto should be
entertained by the Swiss Government. I called the attention of each of
them to the report made by the commission of the Swiss National Council
in May, 1888, recommending that the Federal Council enter into a
consideration of a naturalization convention with the United States, and
requested to be advised as to the views entertained by the Federal
Council as to their competency to negotiate such a convention and their
disposition in relation thereto. I was courteously received by both
gentlemen and both seemed to recognize the great desirability of such a
convention, but neither expressed an opinion as to the competency of the
Federal Council to negotiate in relation thereto. They both promised,
however, to submit the subject to the judgment of the Federal Council
and to report their conclusion thereon in a few days.
About one month subsequently, on December 8, 1896, I called on the
President of the Confederation again, at his invitation, and he
expressed regret that he had not had time to investigate the subject of
a naturalization convention with the United States as thoroughly as its
merits required, and requested me to address him a note embodying the
request which I had submitted to him and Colonel Frey, answering, me
that the Federal Council would then give the subject their immediate
attention. In compliance with this request I did, immediately upon
returning to the legation, address a communication to the President of
the Swiss Confederation, dated December 8, 1896, a copy of which I
inclose herewith. On January 28, I received a reply thereto in the
French language, dated January 22, a copy and translation of which are
inclosed herewith.
It will be observed that the Swiss Government declines to consider a
naturalization convention now, as in 1885, on the ground that such a
convention would be opposed to article 44 of the Swiss constitution.
This article as it appears in the constitution of 1848 reads as follows:
Art. 44. No canton shall expel from its
territory one of its own citizens or deprive him of his rights,
whether acquired by birth or settlement. (Origine on cite.)
[Page 558]
This was amended in 1874 by the following:
Federal legislation shall fix the conditions upon which
foreigners may he naturalized as well as those upon which a
Swiss may give up his citizenship in order to obtain
naturalization in a foreign country.
The Federal Assembly in 1876, in accordance with this amendment,
prescribed the process whereby one might lose or gain the right of Swiss
citizenship. This law provides, among other things, that a Swiss
citizen, in order to renounce his citizenship, must no longer have a
domicile in Switzerland; that he must enjoy a civil capacity under the
laws of the country in which he resides and must have a citizenship in
some foreign country already acquired or assured, for himself, his wife,
and his minor children. The declaration of renunciation should be in
writing, accompanied by proper proof and presented to the cantonal
government. The right of contest is limited to four weeks, and in case
of contests the Federal Tribunal decides.
It will be observed that the amendment to article 44 gives to Federal
legislation the right to prescribe the conditions whereby one might lose
his citizenship, and, therefore, it would seem to follow logically that
such a prescription as the one sought to be embodied in the proposed
treaty (that a Swiss acquiring American citizenship should be held to
relinquish his Swiss citizenship) might properly fall within the
authority of that body. But, as a matter of fact, whatever the words of
the amendment may clearly mean, they have been so often and so forcibly
interpreted so as to exclude from the Federal Council or Federal
Assembly this power that those bodies do not dare, nor do they consider
that they have the right, to oppose themselves to this idea. Thus it is
that the declination of the Federal Council to enter into negotiations
for a naturalization treaty with the United States must be attributed to
a real lack of capacity and not to any wish on their part to oppose
it.
As presenting the Swiss point of view on this subject, I send herewith
inclosed to the Department, a translation of an interesting and
instructive exact from the Handbuch des schweizerischen
Bundes-staatrechts, by Dr. J. J. Blumer, a work of noted authority. In
this article the author has presented from the Swiss standpoint, a clear
and succinct view of the doctrine of perpetual allegiance and a history
of the interesting discussions to which it has given rise.
It will be observed that, however illogical and indefensible the doctrine
may be, it is most profoundly embedded in the sentiment of the Swiss
people. Citizenship is regarded by them not only as a sacred possession
but also as a valuable property right, entitling the citizen to demand
of his commune or canton aid and assistance in case of poverty, or even
a home and support in the event of old age and helplessness. It is,
perhaps, this aspect of the case which appeals most strongly to Swiss
patriotism and is responsible for the manifest repugnance of the Swiss
citizen to renounce his citizenship, even after acquiring citizenship in
another country. He reserves his Swiss citizenship, as a valuable
contingency for old age and helplessness, in the event he should not
prosper in his adopted country. The doctrine is thoroughly understood
and appreciated by all the people of Switzerland, even among the most
ignorant peasants, and is taught in all their schools. Those who
emigrate to the United States are not ignorant of its nature but are
unwilling to renounce their Swiss citizenship and, hence, when on their
return to Switzerland, they are required to perform the duties of
citizenship they are not entitled to much sympathy, however desirous the
Government of the United States may be to shield them.
[Page 559]
They have voluntarily placed themselves in the attitude of owing
allegiance to two different sovereignties, and the burdens and
inconveniences resulting therefrom would seem to be as essentially a
part of this dual allegiance as the advantages which they hope to derive
from it. As naturalized citizens of the United States they owe
allegiance to our Government and are entitled to its protection as
native citizens of Switzerland they hold and claim the right to return
to their commune and demand its aid and assistance in case of poverty or
helplessness. As long as they remain in their Swiss jurisdiction
Switzerland claims the right to exact of them military service and other
duties of citizenship as an equivalent for the possible benefit they may
receive from their commune in the event of decrepitude and
helplessness.
For harmonizing views so widely and radically different and so
conflicting as those entertained by the two Governments upon this
important subject, a naturalization convention would seem to be the
wisest and best remedy, but I regret to say that I see nothing in the
present attitude of the Swiss Federal Council or in the sentiment of the
people to justify the hope of such consummation in the near future.
I have, etc.,
[Inclosure 1 in No. 71.]
Mr. Peak to the
President of the Swiss
Confederation.
Sir: I have the honor to invite your
excellency’s attention to the subject of a naturalization convention
between the United States and Switzerland. This subject has engaged
the attention of the two Governments as far back as in 1884, at
which time the Government of the United States urged the project of
such a treaty upon the Swiss Government. On the 20th of February,
1885, the Swiss Government, in response to this proposed treaty,
replied that Swiss nationality depends upon citizenship of or in a
Canton; that article 44 of the Swiss constitution forbids the
Cantons to deprive a citizen of his citizenship, and the
confederation also has no authority to do so, and that,
consequently, the confederation lacks the competence by treaty to
connect with the acquisition of citizenship in the United States the
loss of citizenship in Switzerland. In view of this constitutional
objection upon the part of Switzerland, the subject was no further
pressed at that time.
In May, 1888, the committee of the National Council in its report
upon the acts of the Federal Council made reference to the repeated
suggestions of the United States for a naturalization treaty, set
out the objections theretofore made by the Federal Council, and
added that the Federal Council had latterly felt well disposed to
the project of such a treaty, and concluded with a recommendation
that the Council enter into a consideration of the convention
proposed.
It is the purpose of this note to inquire of your excellency whether
the Federal Council now has the competency to negotiate a
naturalization convention with the United States, as suggested in
the foregoing report, and whether the Swiss Government at present
feels disposed to enter into consideration of such a convention.
I take this occasion, etc.,
[Page 560]
[Inclosure 2 in No.
71—Translation.]
The President of the Swiss
Confederation to Mr. Peak.
Sir: In answer to the note of your
excellency of December 8 last, submitting to us the project of a
treaty between Switzerland and the United States on the subject of
naturalization, we have the honor to inform you that to the
conclusion of such a treaty as outlined in the above-mentioned
project there is opposed to-day, as in 1885, the principle
enunciated in Article 44 of the Federal Constitution.
If the Government of the United States of America finds it strange
(Report of the Secretary of State to the President for the year
1896, p., 28) that Switzerland clings to this principle, it is
prayed to remember that it is for each state to regulate for itself
the conditions under which one acquires or loses the right of
citizenship within it’s boundaries, and that the practice followed
in Switzerland has its foundation in the point of view and sentiment
of the Swiss people, just as the principles of law in force in the
United States, and differing from ours, spring, no doubt, from the
particular character of the American people.
Besides, it is not exact that a Swiss citizen can renounce his Swiss
citizenship only with the consent of his commune. If the right of
renunciation of Swiss citizenship is contested, the applicant,
following the Federal law of July 3, 1896, can have recourse to the
Federal tribunal which, if the conditions mentioned in this law are
complied with, decides what is necessary to enforce his demand.
Thus, even lately, the Federal tribunal has held that the fact of
not having paid the military tax is not a valid reason for
withholding the right to renounce citizenship.
Receive, sir, the assurance, etc.,
- Deucher,
The First Vice-Chancellor. - Schatzmann.
[Inclosure 3 in No. 71.]
Translation of an extract from the Handbuch des
Schweizerischen-Bundesstaatrechts, by Dr. J. J. Blumer, vol. 1,
page 880.
The possession of the right of Swiss citizenship is derived from the
right of citizenship cantonal, as this in turn is subordinated to
the possession of the right of citizenship communal, or of a
commune.
It is, therefore, to the Cantons that belongs the privilege of
promulgating the regulations upon the loss or acquisition of
citizenship, but inasmuch as contests between the Cantons and even
international conflicts may arise from this state of things, the
constituted authorities believed, as early as in 1848, that it was
necessary to insert in the constitution this principle: “That no
Canton can deprive any of its citizens of the right of origin or of
citizenship.” It was sought to avoid thus a return to the system of
“heimat losat’or “homeless people,” resulting formerly from the fact
that certain Cantons had withdrawn the right of citizenship or
commune from their citizens who embraced another religion or
contracted marriage with the professor of another faith, whereas
other Cantons had sought to prevent this by a vote of the assembly
of Cantons.
At the diet in 1848 the deputation from Zurich proposed to make an
exception to the principle above stated in the case where a Swiss
should possess uncontested citizenship rights in a foreign country.
It was urged that if one continued to consider forever and in all
circumstances the emigrants as citizens, the Cantons and communes
would have in time a population outside of its boundaries, without
direct connection with their country, and who would not avail
themselves of the right of citizenship except upon such occasions as
it should be to their advantage. It was objected to the proposition
of Zurich that the right of Swiss citizenship should be held so
[Page 561]
sacred that any
proscription of it was absolutely inadmissible; that this notion of
the value and importance of the right of Swiss citizenship was bound
up and linked with the sentiments of the Swiss people; that a
citizen of the confederation should not be allowed to lose his right
of citizenship except upon his voluntary renunciation and proof that
he had acquired another domicile. Following this discussion the
proposition of Zurich was rejected by only two votes majority.
During the discussion upon the revision of the constitution in 1871
and 1873, it was sought to add to article 42 of the ancient
constitution a prohibition against the banishment of citizens of
other Cantons from the territory of the Canton where they were. At
the same time the National Commission proposed the following
amendment: “He who acquires or accepts the citizenship of a foreign
country loses his citizenship Swiss and cantonal.” This amendment
was supported by arguments analogous to those which were urged in
1848 in favor of the proposition of Zurich. It was stated that the
Swiss who were naturalized in America refused upon their return to
Switzerland to fulfill their duties of Swiss citizenship when such
was inconvenient to them, invoking their newly-acquired citizenship;
and, on the other hand, when they found themselves in need of it
they reclaimed the aid and assistance of the Cantons and communes,
pretending that, notwithstanding their American citizenship, they
had not lost their rights of Swiss citizenship and still possessed
all the privileges belonging to a citizen, both cantonal and
communal. It was added that a position so equivocal and which could
be easily modified provoked conflicts, and that it was, moreover,
contrary to the spirit of the ancient country. But the National
Council itself rejected this amendment, which had been opposed by
such arguments as these: That in 1850 they had tried to remedy the
inconveniences springing from the “heimat losat,” and that now this
proposition would open the door anew to the same disorder; that it
was in contradiction of Swiss history and the development of its
public rights; that it was opposed to the sentiments of the people,
who held firm to the praiseworthy theory that one could never,
except by his expressed will, lose his right of citizenship in
Switzerland; that often it did not depend upon the free will of the
citizen that he had acquired citizenship in a foreign country, but
that in many countries he was directly compelled by circumstances to
naturalize himself; that thus in a number of countries, and, indeed,
in America, it was necessary to be naturalized before one could
acquire the power to own land, and that in certain of the German
States, where exists the system of concessions, citizenship was an
indispensable condition to the exercise of certain professions. It
was recognized that this double right of citizenship could give rise
to conflicts, particularly where the jurisdiction of tribunals was
concerned; but these inconveniences, it was urged, were not so great
that it should be necessary to discredit a theory widely upheld and
deeply imbedded in the hearts of the Swiss people, and especially
was this true when the acquisition of foreign citizenship had never
as yet occasioned to Switzerland any grave difficulties with other
countries.
The principle that a Swiss can not lose his Swiss citizenship except
he himself renounce it, has been thus maintained since the last
revision. But as the legislation of the Canton presented great
divergencies as to this renunciation, and as the right of
renunciation, even, was placed in doubt by certain Cantons, it was
declared in the project of the constitution of 1872 that this matter
was to be submitted to Federal legislation. And this amendment was
passed without change in the present constitution, of which article
44, or that part of it which concerns the present question, reads
thus No Canton can * * * deprive one of its citizens of the right of
citizenship.” “Federal legislation will determine the conditions
under which a Swiss can renounce his nationality to obtain
naturalization in a foreign country.”
The Federal Council has fully explained the signification of the
above in many notes addressed to foreign governments. It can be
summed up as follows: The right of Swiss citizenship can not be
proscribed; every Swiss conserves his citizenship as long as he does
not renounce it himself and as long as he can prove his descent; the
fact of his having acquired a foreign citizenship is not sufficient
to make him lose his Swiss citizenship; he preserves it even during
a prolonged sojourn in a foreign country, and even when he has not
paid his military and civic taxes in Switzerland; this is also true
if he has accepted military service or entered into the
administration of the foreign country; to lose his Swiss citizenship
a formal and express renunciation is necessary, which also extends
in its effect to his minor children; but in order to make such a
renunciation valuable or valid it is necessary to prove that he has
acquired domicile in another country or Canton.
From all that precedes it follows that the Swiss laws admit the
principle of double citizenship, which is prohibited in many
countries. Thus, in 1851, when the government of Onter Appenzell
Rhodes claimed the authority to withdraw the right of citizenship
from one of its citizens who wished to acquire citizenship in
another Canton, the Federal Council instructed it that this point of
view was contrary to the constitution, and that it would be obliged
to admit as established the right of recourse of a citizen of
Appenzell who complained against such a withdrawal of his
[Page 562]
citizenship. The Federal
Council has also refused to ratify an article of the constitution of
Uri, in 1850, whereby it was sought to exclude citizens who, after
having acquired citizenship in a foreign country, had not .renewed
his Swiss citizenship within a certain time. The same decision was
made in an analogous case concerning the constitution of St. Gall,
in this sense, that the Federal Assembly reserved the right of
interpreting article 43 (present article 44).
In conclusion, it should be mentioned that the Federal Council has
declared inadmissible an ordinance of the Canton of Nidwalden
prescribing that the widows of its citizens, originally of the
Canton of Obwalden, should be returned to the charge of their
original commune. In a word, the acquisition of the right to aid or
assistance is a consequence of the right of citizenship, which,
under the terms of article 44, can not be lost.
