Papers Relating to the Foreign Relations of the United States, 1921, Volume I
The Ambassador in France ( Wallace ) to the Secretary of State
Sir: Referring to the Department’s cabled Instruction No. 87, of February 15th last, 4 p.m., regarding certain naturalized American citizens of French origin who experienced difficulty in obtaining a visa from the French authorities of their American passports, I have the honor to transmit herewith copy and translation of a Note received from the Ministry for Foreign Affairs in this connection.
I have [etc.]
The French Minister for Foreign Affairs ( Briand ) to the American Ambassador ( Wallace )
Mr. Ambassador: By a letter dated February 17 last, and acting under instructions from your Government, Your Excellency was good enough to make known to me that several naturalized American [Page 951] citizens of French origin had informed the Department of State at Washington that at the time of applying for the French visa of their American passports, the French consuls both in New York and in other cities, had declined to recognize them as American citizens, claiming that these individuals must use French passports wherein they would be described as French citizens. According to an example given, it would seem that the French vice consul in New York told one person who desired a visa to visit France, that he must renounce his American allegiance and assume French allegiance.
The Government of the United States has therefore requested Your Excellency to ask me to send instructions to the competent authorities in the United States, directing them not to advise American citizens to renounce their allegiance to the United States, nor to urge them to obtain French passports or to do anything which would imply the disavowal of their American nationality.
Although it is realized that, in view of the conflict of laws of the two countries, complications may arise regarding the status of persons of dual nationality, the Government of the United States hopes that, until these difficulties can be obviated by a satisfactory treaty of naturalization, the French Government will find it possible to make arrangements by which persons, owing fidelity to the United States and whose allegiance is claimed by France, who wish to proceed to France, can do so without being called upon in any manner to disown their allegiance to the Government of the United States, an allegiance which American citizens undertake to observe by solemn oath.
Finally, Your Excellency was good enough to ask me, in conformity with the instructions received from your Government, whether the French Government is willing to take up negotiations for a naturalization treaty.
My Department has thoroughly studied the communication of Your Excellency, in the most friendly spirit and with the sincere wish to find a solution to the difficulties which Your Excellency has been good enough to point out to me. I have the honor to communicate to you below the result of this study.
The Government of the United States—and such is its absolute right, as in acting thus it is only exercising the legitimate prerogatives of sovereignty—grants naturalization to foreigners, and in particular to French persons who comply with the legal conditions for obtaining this favor, without regard to the provisions of the legislation of their country of origin which restrict, in making it subject to certain conditions, their recognized right validly to renounce their nationality of birth.
There are grounds for recognizing with Your Excellency that no one has the right, within the territory of the United States, to urge individuals naturalized in such territory to renounce the allegiance [Page 952] which has been conferred upon them by the sovereignty of the United States.
But the question at issue in the present case is in reality quite different.
Of all the countries in the world France is perhaps the one which has shown the most liberal tendencies as regards the liberty of expatriation, which the law of Congress of July 27, 1868,42 declared a natural right of man. Until the law of May 12, 1870, the United Kingdom of Great Britain and Ireland maintained the principle of perpetual allegiance: “once a subject, always a subject”, which principle the United States has not expressly repudiated as regards American citizens, except by article 2 of the Federal law of March 2, 1907,43 relative to the expatriation of citizens and their protection abroad. Moreover, until the law of July 22, 1913, on the acquisition and loss of Empire and State nationality, the German Empire did not admit naturalization abroad as a cause of loss of State nationality and of the quality of nationality of the Empire, and admits it now (article 25 of the above-mentioned law) only under a reservation allowing, with the connivance of the Empire authorities, the voluntary and secret preservation by the interested party of his nationality of origin concurrently with the nationality acquired upon his request. On the other hand, article 17 of the French Civil Code of 1804 provided without any restriction for the loss of French nationality as a result of the naturalization of French people abroad. The Imperial decree of August 26, 1811, enacted, it is true, severe penalties for French persons who obtained naturalization abroad without the consent of the Government, but these penalties had fallen into disuse with the circumstances which had given rise to them, and the bond of allegiance continued to be broken, and foreign nationality acquired by naturalization was recognized in France, as was expressly shown by the judgment of the Civil Court of the Seine (3d Chamber), of February 23, 1898, in the Tirveillot case.
Following the war of 1870–71, in view of the circumstances, France found herself under the necessity of having recourse to the institution of compulsory and personal military service, introduced by the law of July 27, 1872, on army recruitment.
In view of the stagnation of her population, France had to prevent Frenchmen from escaping their military obligations and eluding them through naturalization abroad. In consequence of the loss of French nationality, such naturalization did indeed result in the crossing out of the names of the men in question from the military [Page 953] lists and registers, inasmuch as it is a French principle that no one can be allowed to serve in the French army unless he is French or a naturalized Frenchman (article 3 of the law of July 15, 1889, and article 3 of the law of March 21, 1905 on army recruitment.)
The French legislator of 1889 did not, however, abandon the traditional principle of liberty of expatriation. On the contrary, he reinforced it by abrogating the decree of August 26, 1811, and by including in item 1, paragraph 1, of article 17 of the Civil Code, modified by the law of June 26, 1889, as a cause of the loss of French nationality, the acquisition by a Frenchman at his request of a foreign nationality as a result of the law of naturalization, properly so called. But, in the 2d paragraph of article 17, item 1, he inserted the following reservation with a view to safeguarding the interests of national defense:
“If he (the Frenchman) is still under the obligations of military service in the active army (the term ‘active army’ including the inactive list and the reserve of such army), naturalization abroad will not result in the loss of the French nationality unless such naturalization has been authorized by the French Government.”
A similar reservation, prompted by the same spirit, exists in American law itself. Article 2 of the Federal law of March 2, 1907, relative to the expatriation of citizens and their protection abroad, while laying down as a principle that any American citizen shall be deemed to have expatriated himself when he has been naturalized in a foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state, adds in fine the following proviso:
“No American citizen shall be allowed to expatriate himself when this country is at war”.
It follows that naturalizations obtained by citizens of the United States under these circumstances, in contempt of the provisions of this law, do not result in the loss of American nationality, are not recognized in their effect by the Government of the United States, and cannot be pleaded against it on its territory.
This provision of the law contemplates only a time of war. But in reality it is more stringent than paragraph 2 of article 17, item 1 of the French Civil Code. In fact, it applies to all American citizens, without any distinction of age or sex, whereas paragraph 2, article 17, item 1 is applicable only to males and only to one category of them. Girls or women of age, widows, or divorced women, or those having only obtained judicial separation, since the law of February 6, 1893, amending article 311 of the Civil Code, Frenchmen definitively exempted from military service or having complied with [Page 954] military obligations in the active army and in the reserve of the latter, and passed to the territorial army, who have obtained naturalization abroad, lose for this reason French nationality from the French point of view, without having to request or obtain any authorization from the Government beforehand.
However, Frenchmen who, being still under military obligations in the active army and its reserve, have secured naturalization abroad without having requested and obtained the authorization of the French Government beforehand, remain French from the French point of view, a subsequent authorization not having the power to set right their defective naturalization. It is the same with deserters and insoumis (defaulters) who, not having complied with military obligations for the active army, are still legally liable for them. Whatever their age may be, naturalization abroad does not cause them to lose their French nationality, according to the terms of article 17, item 1, paragraph 2 of the Civil Code.
This does not mean that the French administrative or judicial authorities are in a position to question the validity or pronounce the nullity of a document of naturalization emanating from a foreign sovereignty. International courtesy prevents it. But such a document can have no effect on French territory, and French nationality with its rights and the duties attached thereto is the only one which can be recognized on French territory in the individual in favor of whom the naturalization has taken place.
Furthermore, it is the same with individuals born in the United States of French parents not naturalized or [not?] naturalized before their birth, who are considered Americans jure soli by American law, whereas France considers them as French by birth, jure sanguinis, by virtue of article 8, paragraph 1 of the Civil Code, without according to them any right of option.
Each State on its territory, by virtue of its sovereignty, applies in the matter of nationality its own legislation which bears the character of public law, to the exclusion of any other.
The principle generally accepted and recognized in international relations, which principle is in conformity with this rule, is, as stated in Westlake, International Law, Part I, Peace, 1910, chap. X, p. 230, that in the absence of provisions by treaty clauses, no State ought to give protection to its nationals residing on the territory of another State which claims them as its nationals on any ground recognized in the civilized world, jus soli, jus sanguinis, or naturalization.
The French practice to which Your Excellency is good enough to allude, is in conformity with this principle.[Page 955]
In the United States a passport is not only a travel document, but a document indicative of nationality. The passport attests the American citizenship of the holder.
On arrival in France the passport is to serve as proof of nationality. The visa of such a document by our consuls would be tantamount to the official guarantee that this nationality will be recognized in him in France, whereas a formal provision of our domestic public law states that this cannot be guaranteed; that he has retained his status as a Frenchman in France, and that he must be treated here as such. Bound by French law, our agents, without contesting the American point of view regarding the value of the documents which are submitted to them, cannot give any such assurance to the applicants, which might mislead them concerning their real status under French law, which prevails exclusively on French territory and determines their status there. It is the duty of the French agents, while in no way urging the applicants to disown American allegiance, to inform them of the nationality which is attributed to them on French territory and of the conditions of admission thereon. Consequently, in spite of my earnest wish to give satisfaction to the request which Your Excellency has been good enough to address to me on behalf of the Government of the United States, it is not within my power to issue instructions recommending the violation of French legislation constituting public law and being of a public order.
I do not ignore the serious difficulties which arise from the absolute divergence of the two systems of laws as regards nationality, each one being sovereign in the territory which it governs. This situation is not peculiar to the relations between France and the United States. The same conflicts exist in our relations with many other States.
Your Excellency was good enough to suggest that an endeavor should be made to settle these difficulties by means of a treaty. In view of the particularly amicable relations which exist between the two countries, I do not feel that I should dismiss this suggestion. However, I must call Your Excellency’s attention to the special difficulties which the conclusion of a treaty on such a subject offers. Firstly, from the constitutional point of view, such a treaty must be submitted to the approval of Parliament. Article 8, section II of the constitutional law of July 16, 1875, on the relations of the public powers provides in effect:
Treaties of peace, of commerce, other treaties which involve the finances of the State, those which refer to the status of persons and to the right of property of Frenchmen abroad are not definitive until they have been approved by a vote of the two Chambers.
Now, a treaty regulating questions of nationality is relative, in the highest degree, to the status of persons. I cannot, of course, prejudge the reception Parliament might possibly give a treaty modifying the fundamental principles on which our law on nationality is based at present but not finding its justification in actual reciprocity.
The convention of May 13, 1870, between the United States and Great Britain44 was greatly facilitated, on the one hand, by the suppression of the principle of perpetual allegiance by the British law on nationality of May 12, 1870, and on the other hand, by the fact that the institution of compulsory military service was unknown in both countries.
As regards the celebrated Bancroft treaties45 concluded in 1868 between the United States and the Confederation of Northern Germany, Bavaria, the Grand Duchy of Baden, Hesse, and Württemberg, it should be recalled that the laws of the greater part of the German States, like the subsequent law of June 1, 1870, on the acquisition and loss of Empire and State nationality, admitted as a cause of the loss of nationality an uninterrupted residence of ten years abroad. Hence, the treaties, in making the loss of German nationality a result of a reduced residence abroad of five years coexistent with naturalization in that country, did not derogate from a principle; they conformed to it, although they attenuated the original requirements of internal legislation. It is not the same as regards France, where French nationality is not lost through residence abroad, however protracted its duration may be, since the suspension by the law of June 26, 1889, of the cause of loss of nationality resulting from emigration without intention of returning.
Moreover the Bancroft treaties are far from having settled the question in an entirely satisfactory manner. In fact, it appears from the statistical reports of Mr. Squiers, Secretary of the Legation of the United States at Berlin, on the practical application of the Bancroft treaties, that the Imperial administration, under the influence of the necessities of recruitment and the tendencies to reinforce the military institutions of the German Empire, recognized so well immigrant Germans naturalized in the United States as Americans, that it expelled them en masse, judging their presence undesirable in the territory of the Empire as having a demoralizing effect on German nationals who had to comply with military obligations.
Finally, a special treaty on naturalization like the Bancroft treaties would have a limited object; it would leave out of its provisions [Page 957] the situation of individuals born in the United States of French parents not naturalized or [not?] naturalized before their birth, considered as Americans in the United States and as French in France, without any participation of their will. This situation, arising out of the absolute incompatibility of jus sanguinis and jus soli could not be settled without the formal renunciation by one of the two countries of the fundamental principle on which they base the attribution of nationality of origin.
I am none the less ready, as I have said before, to receive the overtures which Your Excellency might be led to make me, and to examine them in the most friendly and conciliatory spirit, while making reservations on the possibilities of reaching an agreement, in view of the special difficulties which I have pointed out and the necessity for Parliament’s approval.
Please accept [etc.]
Minister for Foreign Affairs and by order:
The French Ambassador, Secretary General