Mr. Peak to Mr. Olney.

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.,

John L. Peak.
[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.,

John L. Peak.
[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.