File No. 711.654.
The Secretary of State to Ambassador White.
Washington, February 11, 1907.
Sir: Naturalizations have been conferred since the beginning of the present month in accordance with the provisions of the Naturalization Law approved June 29, 1906; and the inauguration of the [Page 390] more rigid system which that law requires makes the present an appropriate time, in the opinion of this Government, to open negotiations with certain foreign Governments looking to conventional agreements similar to those which the United States now has with several European countries, defining the rights of their citizens, or subjects, respectively, when they return to the country of their origin. Under the new law it is required that the Federal government shall receive notice of all naturalizations pending and accomplished, and adequate means are provided for setting aside naturalizations improperly granted in the past as well as in the future, while general control of all naturalization matters is lodged with the Federal Government. Copies of the Act of June 29, 1906, are herewith enclosed for your use.
In calling the attention of the Italian Government to these facts, you are instructed to present to it the considerations which follow, supplementing them, if you deem it opportune to do so, by any additional statements which in your judgment will be likely to effect the purpose which this instruction seeks to accomplish.
The volume of emigration from Italy to the United States has in recent years become so large that it forces itself upon the consideration of this Government. Many of the Italians who thus come to this country intend to remain and establish their homes in the United States. In due season they seek naturalization as citizens of the United States and when they have become naturalized they enjoy the same civil and political rights as attach to native citizens of the United States; and if they proceed abroad they receive under our laws the same protection of person and property as native American citizens receive. In conferring naturalization upon them the laws of the United States do not require them to show consent to such naturalization on the part of the Italian Government, and in this particular our laws are similar to those of Italy, which, as this Government understands, also confer naturalization without requiring the previous consent of the country to which the person naturalized may owe original allegiance. Some of these naturalized citizens, drawn by a natural affection for their parent country, desire to revisit it and do revisit it, and their status is at present ill-defined and the cause of misunderstandings which, as this Government believes, could be removed and rendered improbable of recurrence by a conventional agreement defining their status and their rights.
The status of those Italian subjects who come to the United States and subsequently return to Italy without having acquired citizenship of the United States is not the subject of this instruction, for this Government disclaims any inclination to regard them as having a right to the consideration of the United States when they return to Italy. This remark applies also to those Italian subjects who make the declaration of their intention to become citizens of the United States which is required by our law as a preliminary step to naturalization. Whatever their status may be in the United States or in a third country, it is recognized that in Italy it may be properly claimed that they have not yet divested themselves of Italian subjection. The following provision of the first article of the Naturalization Convention between the United States and Sweden and Nor[Page 391]way1 is also contained in the other naturalization treaties to which the United States is a party:
The declaration of intention to become a citizen of [one or] the other country has not for either party the effect of citizenship legally acquired.
Article XI, clause 2, of the Italian Civil Code provides:
Italian citizenship is lost by the following persons.* * * 2. He who has acquired citizenship of a foreign country.
It is this principle of Italian law, so consonant with the polity of enlightened nations, which the United States would be gratified to see incorporated in the agreement between the United States and Italy, carrying with it the corollary that when the citizenship ceases obligations consequent upon such citizenship cannot equitably be held to arise thereafter.
But under Italian law, as this Government understands it, the naturalization of an Italian in a foreign country without the consent of the Italian Government is no bar to liability to military service, and this provision seems to qualify materially the provision quoted above, which declares that Italian citizenship is lost to one who becomes a citizen of another country; nor is it apparent that a right can equitably be claimed to punish a man for non-performance of a citizen’s duties when it has been declared that the citizenship upon which the duties depend has been lost.
It should be distinctly understood that this Government has no inclination to intervene to protect any citizen of Italian origin from the consequences of his having broken Italian military law before his emigration to the United States. The language of Article II of the Naturalization Convention of May 26, 1869, between the United States and Sweden and Norway, which appears in varying form in all of our naturalization treaties or conventions with foreign powers, may be cited here as setting forth this Government’s position in this regard:
Article II. A recognized citizen of the one party, on returning to the territory of the other, remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration, but not for the emigration itself, saving always the limitation established by [the] laws of his original country, and any other remission of liability to punishment.
Nor has this Government any desire to intervene in behalf of any Italian who has remained in the United States only long enough to secure naturalization and then has returned to Italy in the hope of there residing as an American citizen, exempt from the operation of Italian military law. Such an one has sought to evade the laws of both countries. His naturalization in the United States is now, in fact, made unlawful, as the law specifically forbids the naturalization of any one who does not intend “to reside permanently within the United States.” Such is the letter of the new law, and it appears to be in full accord that [with?] that part of the emigration law of Italy of January 2, 1901, which provides, in Article 36, for the naturalization of a foreigner “provided such person declares his intention of establishing his domicile in the Kingdom.” This Government holds, however, that those who secured naturalization under the old naturalization laws of the United States violated their spirit if [Page 392] they did so intending to reside permanently abroad. It was never designed to confer American citizenship upon those who intended to use that citizenship merely as a cloak to protect them from performing the duties of citizenship of any country, and the policy of the Government of the United States is opposed to enabling them to effect that purpose.
Article IV of our treaty with the North German Confederation,1 which, in substance, is repeated in several of our treaties with other powers, says:
If a German naturalized in America renews his residence in North Germany, without [the] intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally, if an American naturalized in North Germany renews his residence in the United States, without [the] intent to return to North Germany, he shall be held to have renounced his naturalization in North Germany. The intent not to return may be held to exist when the person naturalized in [the] one country resides more than two years in the other country.
Mere liability to military service by arriving at military age should not involve punishment; for in that case no actual or accrued duty has been left unperformed. Desertion is evasion after military duty has accrued and after an Italian has been actually summoned to perform duty or is in the army.
This Government holds that one who has become a citizen of the United States cannot properly be punished for the non-performance of a duty which is alleged to grow out of the allegiance which he has cast off. If he deserted from the army he may be punished; but if he was not in the army he may not equitably be molested upon his return as an American citizen. The first article of our treaty with the North German Confederation, which is similar to corresponding articles of other naturalization conventions negotiated by the United States, provides as follows:
Citizens of the North German Confederation who become naturalized citizens of the United States of America and shall have resided uninterruptedly within the United States five years shall be held by the North German Confederation to be American citizens and shall be treated as such.
Reciprocally, citizens of the United States of America who become naturalized citizens of the North German Confederation, and shall have resided uninterruptedly within North Germany five years, shall be held by the United States to be North German citizens and shall be treated as such.
The Government of the United States accordingly suggests as the basis for the negotiations with the Italian Government the article just cited from the treaty between the United States and the North German Confederation, and the second article of the treaty between the United States and Sweden and Norway, previously cited.
It is believed that these two articles, the one providing for mutual recognition of naturalizations under definitely prescribed conditions, the other securing immunity to a naturalized citizen from punishment in his native land for offenses committed after his emigration, will afford a basis for a treaty which will promote the continuance of those cordial and friendly relations which have so happily existed between the United States and Italy.
I am [etc.]