Mr. Porter to Mr. Hay.

No. 448.]

Sir: Referring to previous correspondence concerning the case of Gendrot, I now send a copy and a translation of Mr. Delcassé’s reply to my statement that Gendrot was a native-born American and claiming him as such. In this reply the minister of foreign affairs, expressing the view of the minister of justice, assumes quite a new position. In its correspondence with this embassy, and particularly in the case of Giron (1897), the French Government had admitted that a Frenchman having passed the age of service in the active army was no longer obliged to obtain permission from the French authorities to change his original nationality, an admission which is in strict conformity with the revised article 17 of the Civil Code. It is now contended for the first time that no Frenchman has the right to change his nationality without the consent of the French Government, if he has not complied with the military laws, whether he has passed or not the age of doing military service. No law is quoted in support of this view. Mr. Delcassé’s note might call for other remarks, but as it is admitted that Gendrot can have his case settled by appealing to a civil court, and as he has chosen to do so, I shall let the matter rest until a decision is obtained or until further instructions are received from the Department if it is deemed advisable to send any.

I have, etc.,

Horace Porter.

Mr. Delcassé to Mr. Porter.

Mr. Ambassador: On the 10th of February last your excellency was good enough to call the attention of my department to Mr. Felix Albert Gendrot, born at Cambridge, Mass., April 28, 1866, of French father, who claims American citizenship. [Page 272] Mr. Gendrot, who is at present in France, was recently called before the military authorities at Paris to make known the motives which prevented him from complying with the recruiting obligations. You remark that the individual in question, being born in the United States, was considered by the Federal authorities as an American citizen, and that, having never lived in France, he, like his father, also must have lost his title to French citizenship according to the old article 17, section 3, of the Civil Code, by being established abroad without any intention of returning. You added that the person in question had passed the age of military service in the active army, and that, consequently, he could decline French citizenship without the consent of the Government of the Republic.

My colleague, the minister of justice, to whom I did not fail to communicate this information, remarks to me this day that it does not belong to him to examine whether Gendrot can claim American citizenship because he was born in the United States. Each country is free and independent in the exercise of its sovereignty, but there is no doubt that this individual must be considered with regard to French law as French, in accordance with article 8, section 1, of the Civil Code (old article 10).

As to the question whether an individual has lost his title to French citizenship by establishing himself abroad without any intention of returning, it depends on circumstances of the fact, which the courts, sovereign judges in questions of nationality, can alone decide, and if Gendrot proposes to invoke this motive he can submit his case to the judicial authorities.

Lastly, the fact that the interested party has passed the age of military service in the active army does not give him the right to claim foreign nationality. He could oppose this foreign title only by showing that he has been naturalized in the United States in accordance with the laws in force. Now, such is not the case. Moreover, in order to acquire validly, with regard to the French Government, American naturalization he should have a formal authorization. He is, in fact, to-day still subject to the obligations of military service in the active army, because he is in the position of one who has been omitted or who did not submit. It is the fact of having complied with the obligations of the military service in the active army and in the reserve, and not the fact of having reached the age when one is transferred to the territorial army, which enables a Frenchman to have himself naturalized abroad without the consent of the Government.

Under these conditions, the keeper of the seals is of opinion that until a contrary decision is obtained from the courts Gendrot should be considered as being of French nationality.

Accept, etc.,