The Secretary of State to the Chargé in France (Whitehouse)
Sir: The Department has received your despatch No. 6218 of April 1, 1926, in reply to its instructions of May 11, 1923, and July 8, 1925, concerning the desire of this Government to conclude a satisfactory treaty of naturalization with France. It appears from your despatch that this matter has been the subject of discussion between representatives of the Embassy and the Foreign Office, and you transmit a draft of a proposed treaty which you believe that the French Government might be persuaded to conclude with the Government of the United States. You also transmit memoranda concerning the various points as to which the laws of the United States and France appear to be in conflict, together with an expression of views concerning the extent to which the French Government might be persuaded to make concessions to the Government of the United States.
The Department appreciates the careful attention which has evidently been given to this matter by the Embassy, but I regret to say that it is not considered that this Government could properly enter into a treaty along the lines suggested. Without entering into a detailed discussion of the various provisions in the Embassy’s draft, I desire to call attention to two provisions which seem to be of special importance. The first of these is found in Article 1, which provides that persons of French origin who obtain naturalization in the United States in their own right shall be recognized by the French authorities as American nationals “provided they left France in their childhood or more than five years prior to the date when they would be called for military service”. The second provision mentioned is also found in Article 1 and reads as follows:
“The Government of the United States, for its part, will not undertake to naturalize Frenchmen who have already reached the military age above mentioned, that is to say, sixteen years, unless those persons owe no further obligation to the French military authorities or bear an authorization of the French Government enabling them to be naturalized abroad.”
From the second provision quoted, it appears that liability for military service in France begins when a Frenchman becomes sixteen years of age, although it is understood that in time of peace they are not called until they are considerably older than this.
An agreement in a treaty with France embodying either of the provisions quoted above would clearly be contrary to the position of this Government with regard to the right of expatriation, as declared in the joint resolution of Congress, July 27, 1868 (R. S. 1999–2001), [Page 111] in which it was asserted that “the right of expatriation is a natural and inherent right of all people”. This Government has concluded a number of naturalization treaties containing provisions to the effect that naturalized citizens of the United States could be held liable to trial and punishment in their native lands for offenses committed by them prior to their emigration. In this relation special attention is called to the provisions of Article 2 of the Naturalization Treaty of 1871 with Austria35 and the similar provision contained in Article 2 of the Treaty of 1870 with Baden.36 Both of these treaties are now obsolete. Attention is further called to the second article of the protocol to the Naturalization Treaty of 1872 with Sweden and Norway.37 While these treaties admit the right of the country of origin to punish a former national who has been naturalized in the other country for desertion from the army or for emigration after liability for military service has arisen, they do not deny the right of persons to emigrate before liability for military service has arisen and subsequently to obtain naturalization in the other country.
It is believed that it would be much better to have no naturalization treaty at all than to have a treaty expressly recognizing the right of the French Government to treat as French nationals persons of French origin naturalized as citizens of this country who emigrated within five years before the date set for their call to the French colors. It is understood that Frenchmen are called to the colors at about the age of eighteen years. If such is the case, this Government, under the proposed treaty, would expressly recognize the right of the French Government to take naturalized American citizens of French origin who emigrated at any time after reaching the age of thirteen years.
As to the proposed provisions that the United States will not grant naturalization to Frenchmen who have reached the age of sixteen years “unless those persons owe no further obligation to the French Military authorities or bear an authorization of the French Government, enabling them to be naturalized abroad”, it may be observed that such a provision would not only seem to be contrary to the position of this Government with regard to the right of expatriation, but would also seem to be in violation of Clause 4, Article 2 of the Constitution of the United States, that “the Congress shall have power …38 to establish an uniform rule of naturalization”. An attempt by the treaty-making [Page 112] power to conclude a treaty with France containing the provision last mentioned would seem to be not only an invasion of the Constitutional jurisdiction of Congress but a violation of the provision as to uniformity.
If you believe that there is any likelihood that the French Government may be persuaded to conclude a treaty of naturalization along the lines of the draft submitted with the Department’s instruction of May 11, 1923, it is desired that you avail yourself of a suitable opportunity to present the matter again to the Foreign Office. However, if there seems to be no such likelihood, it is believed that the matter should be dropped for the present.
As to the cases of dual nationality, particularly cases of persons born in the United States of unnaturalized French parents, it might be desirable to attempt to include a special provision in the proposed naturalization treaty, if it appears that there is any likelihood that a treaty satisfactory to this Government might be concluded. However, this Government could not agree to any provision under which persons born in the United States of alien parents would be free to elect the nationality of their parents and renounce American nationality upon reaching the age of majority while continuing to reside in this country. Generally speaking, it is believed that, in cases of persons born with dual nationality, their permanent allegiance after they have attained the age of majority should be dependent upon their actions, and particularly upon the place where they have maintained a domicile, rather than upon mere declarations. For example, it does not seem reasonable that the French Government should claim the allegiance and demand performance of service in the French army in the case of a person who was born in the United States of French parents and who, having attained the age of majority, has continued to reside in this country.
With relation to this matter, your attention is called to the fact that the action of the French Government in impressing into the French army naturalized American citizens of French origin and persons born in this country of French parents, when such persons were on a mere temporary visit to France, has recently been the subject of comment in the press of this country. It may also be observed that the Department has just received a letter from The Merchants’ Association of New York, a prominent organization of business men, making inquiry concerning this subject.39
I am [etc.]
- Concluded Sept. 20, 1870; proclaimed Aug. 1, 1871. For text of article II, see Malloy, Treaties, 1776–1909, vol. i, p. 46.↩
- Concluded July 19, 1868; proclaimed Jan. 10, 1870. For text of article II, see ibid., p. 54.↩
- Concluded May 26, 1869; proclaimed Jan. 12, 1872. For text of protocol, see ibid., vol. ii, p. 1760.↩
- Omission indicated in the original instruction.↩
- Letter not printed.↩