Papers Relating to the Foreign relations of the United States, 1927, Volume II

451.11 M 571/3

The Secretary of State to the Chargé in France (Whitehouse)

Washington, December 17, 1927.

No. 2546

Sir: The Department has received your despatch No. 7608, of June 21, 1927, and the enclosed copy of a note from the Foreign Office²³ regarding the claim made on behalf of Miss G. B. Myer^23a for the release of her sequestrated property.

It is the opinion of this Government that the conclusion reached by the French authorities is not supported by the established facts, that the effort to question the American citizenship of the claimant is without merit and that the rejection of the claim is directly in conflict with the assurance of the reciprocal treatment to be accorded American claimants given to this Government in 1921 by the French Ambassador at this capital, in reliance upon which the Alien Property Custodian of this Government released from sequestration the property of a large number of former German subjects who had only recently acquired French citizenship.

The Foreign Office apparently holds in substance that the original German nationality of the father of the claimant so completely permeates and dominates all subsequent acts as to preclude all possibility of the effectuating of a change of nationality, and even nullifies the Constitutional provisions of this Country conferring American citizenship upon children born in the United States.

It is declared that no proof has been submitted of the American naturalization of the claimant’s father, or that he had lost his German nationality and that the claimant is herself German jure sanguinis and moreover, that “there is nothing to justify that she has lost her nationality of her own act”.

Your Embassy has already transmitted to the Foreign Office the birth certificate of Miss Myer, evidencing the fact of her birth in the United States, and it should possibly be noted that this Government is concerned with the question of the citizenship of the claimant alone. It has heretofore been brought to the attention of the Foreign Office that under the provision of the applicable laws of this Country, the fact of birth in the United States effectuates American citizenship, regardless of the nationality of the parents, and that it can be lost only in the event such individual acquires an alien citizenship by naturalization, or takes an oath of allegiance to a foreign Government. It has been adequately established that this Government has recognized the American citizenship of the claimant, and that as far back as 1901, an American passport was issued to her and that she has subsequently received similar recognition by the issuance of passports. It also appears from the statement of the claimant that in 1917 under the requirements of the German laws, she was registered as an American citizen. The certificate of the Prefect of Police of Dresden, dated December 3, 1926, evidencing the non-acquisition of German citizenship by the claimant, was submitted as additional assurance to the French officials of the fact that there had been no change of citizenship during the period of her residence in Germany. It follows, therefore, that the principle of jure sanguinis is entirely foreign to the question of the American citizenship of the claimant and that she has not changed her American citizenship acquired by birth in the United States.

In the light of these facts there does not appear to be any warrant for the assumption of the existence of German nationality in the claimant, and it seems obvious that the contention that “there is nothing to justify that she” —the claimant— “has lost her (German) nationality of her own account”, is equally without merit or pertinent significance. Nor is it clear that the reference to the applicability of the German Law of July 22, 1913, the Delbrook Law,²⁴ serves any purpose.

The German Law of July 22, 1913, provides in substance that a German national could, under the authority secured from the German Government, retain his German citizenship whilst applying for and acquiring an alien citizenship. This law was enacted some forty-two years after the acquisition of American citizenship by birth of the claimant in the United States. It was applicable only to those possessing German nationality who desired to acquire alien nationality in addition to the retention of their German nationality. In no possible manner and by no process of reasoning can it have reference to, or affect the political status of a native born American citizen.

Under the provisions of the new French law of nationality, passed by the French Parliament on July 13, 1927,²⁵ France applies the same principle of law to one born in France as is employed by the Government of the United States in determining that Miss Myer is an American citizen and is not now and never has been a German subject or citizen. Under Articles III and IV, it is provided that an individual born in France, even of foreign parents, acquires French citizenship either by declaration made prior to the age of twenty-one years or by operation of the statute upon failure of such a one to decline French citizenship within one year after his or her majority.

Under Article VI foreigners may acquire French nationality by naturalization, and by Article I it is provided that every legitimate child of a Frenchman is declared to be a French citizen.

In addition to the foregoing, the action of the Foreign Office makes it opportune to refer at some length to the action heretofore taken with reference to many other similar claims of American citizens, regarded by this Government as directly in violation of the authoritative assurance that the French Government would reciprocate, in connection with claims of American citizens for the release of sequestrated property, the action of this Government in releasing the sequestrated property of those former German citizens who had acquired French citizenship by reason of the provisions of the Treaty of Versailles.

It will be recalled that under the Sequestration Statutes of France the property of many individuals was seized although they were at the time of the enactment of the Statutes and of the seizure of the property, native born, or naturalized American citizens of German origin; that many, though nationals of Germany or Austria-Hungary, had previously made application for naturalization and acquired full American citizenship subsequent to the outbreak of the war, in compliance with the laws of naturalization of this Country, and the provisions of the naturalization treaties of 1868 between this Government and the North German Confederation,²⁶ the other German States not members of the union,²⁷ and the Treaty of 1870 with Austria-Hungary.²⁸

Article I of the German Treaties is 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.

“This Article shall apply as well to those already naturalized in either country as those hereafter naturalized.”

Article I of the Austro-Hungarian Treaty is as follows:

“Citizens of the Austro-Hungarian Monarchy who have resided in the United States of America uninterruptedly at leave [least] five years, and during such residence have become naturalized citizens of the United States, shall be held by the Government of Austria and Hungary to be American citizens, and shall be treated as such.

In like manner this Government sequestrated the property of former German citizens who later acquired full French citizenship, under the provisions of the Treaty of Versailles, in the Annex following Sect. V of Part III,²⁹ wherein provision was made for the acquisition of French citizenship of certain classes of residents of Alsace-Lorraine. The French Government was fully aware of the undetermined rights of these French and American claimants, whose property had been sequestrated, for in reply to the representations made by the American authorities on behalf of American claimants the French Foreign Office replied that the claims were denied on the ground of the delayed acquisition of American nationality, namely, subsequent to the outbreak of the war. With regard to French claimants the French Ambassador at this capital, in 1919 sought to secure a basis for the allowance of the claims and recognition of the French citizenship of the residents of Alsace-Lorraine. He had been previously informed that under the provisions of the Trading with the Enemy Act of this Government,³⁰ as then enacted, Alsace-Lorrainers were not entitled to secure the release of their property sequestrated by this Government subsequent to its entry into the war.

In October, 1919, the French Ambassador wrote:

“October 16, 1919.

“Mr. Secretary of State:

“My Government wishes me to urge upon the competent American authorities the case of the Alsace-Lorrainers whose property was taken over by the Alien Property Custodian.

“However, it appears from unofficial information given to me that the Honorable the Attorney General decided that under the Trading with the Enemy Act Alsace-Lorrainers could not at present be recognized as non-enemy.

[“]Nevertheless, I cannot refrain from bringing to Your Excellency’s notice the situation in which this places some of my compatriots who, thanks to a liberal decision of the Department of Justice, have escaped being registered as alien enemies provided they could establish their origin, at the time of the registration, and were classed as ‘French Alsace-Lorrainers’. One could hardly understand why Alsace-Lorrainers should be treated as enemies in so far as mere worldly interests are concerned when the generous entry of the United States in the war had for one of its definite objects as put in one of President Wilson’s 14 points, the liberation, now achieved, of the Alsace-Lorrainers. An amendment to Article [Section] 9 of the above mentioned Act³¹ has already simplified the formalities required for the return of their property to French residents of a territory formerly occupied by the enemy. My Government would greatly desire to have the same advantages extended to Alsace-Lorrainers upon presentation of a certificate of French authorities showing that they really are Alsace-Lorrainers and loyal French citizens.

[“]Your Excellency would greatly oblige me by giving early and benevolent attention to this matter to which we attach very great importance.

[“]Be pleased to accept etc.

[“]Jusserand.”

In reply the Department informed the Ambassador that the residents of Alsace-Lorraine were at that time resident within a territory which was still a part of German territory and were, therefore, not eligible under the statutes to secure a release of their property, and that, in the absence of further legislation by Congress, no basis for the allowance of their claim could be negotiated. On January 13, 1920, the French Ambassador again addressed the Department,³² relative to the claim of Alsace-Lorrainers and observed that the Treaty of Versailles as between France and Germany had come into force on January 10, 1920, that the territory of Alsace-Lorraine was thus French, and that the residents were, therefore, qualified as claimants under the statutes of this Government. The merit of the Ambassador’s contention was recognized, but it was obvious, and correctly held, that our Sequestration Statutes did not then authorize a release of the property of the residents of Alsace-Lorraine seized by the Alien Property Custodian.

On June 5, 1920, an amendment to the Trading with the Enemy Act³³ was enacted providing the basis upon which the claims, of those French citizens, referred to by the French Ambassador, could be allowed by the officials of this Government.

By the amendment of June 5, 1920, a release from sequestration was made available to those claimants who had been citizens and residents of Germany, or Austria-Hungary, as it existed on August 4, 1914, and who, by the terms of the Treaty of Versailles or other treaties of peace concluded in pursuance thereof, had become “ipso facto or through the exercise of option”, a citizen of any nation, state or free city other than Germany, Austria, or Hungary. Such release was made possible, as provided by Sub-Section (e) of Section 9 of the Act, only upon the condition that the Nation, State, or Free City of which the claimant had become a citizen, “in like case extends reciprocal rights to citizens of the United States”; etc. There is annexed a copy of the pertinent portion of Section 9 of the Act as amended June 5, 1920.³⁴

The reciprocal treatment contemplated by the Act, as a basis for the allowance of the claims of all French citizens, required the extension by France to American claimants of the same rights of allowance as was accorded by this Government to French claimants. It required the allowance by France of all of those claims of American citizens as were essentially similar, not identical in all respects and circumstances, as those of the French claimants. The French Ambassador was fully informed of these requirements and acknowledged his Government’s exact understanding of the basis upon which claims of these newly created French citizens would be considered and allowed by this Government under the authority of the Amendment, June 5, 1920.

Under date of December 14, 1920, the French Ambassador again addressed the Department³⁴ relative to the steps necessary to be taken “with regard to the release to French citizens and particularly Alsace-Lorrainers of their property taken into custody” and observes in part:

“In the second place, I have been put in position to assure Your Excellency that reciprocity is accorded in France as provided by the American Act above cited. In accordance with the third section of paragraph B of Article 297 of the Treaty of Versailles³⁵ and similar provisions of the other treaties, the property of enemy nationals who acquire an allied or associated nationality as of right by operation of the treaties, is not liquidated, and is released as soon as the owners can bring proof of their having acquired such a nationality.

“It is, however, proper to remark, in order to prevent any misunderstanding, that the reciprocity declaration herein cited, can have no practical effect as far as American citizens are concerned, as no German can, by operation of the Treaty, acquire American nationality.

“But there remains the question of the property of Frenchmen who have acquired French nationality otherwise than by operation of the treaties and whose property was, on some ground or other, taken in custody in America, and conversely, that of the property of Americans who acquired their nationality otherwise than by operation of the treaties, and whose property is, on some ground or other, held in custody in France.

“I may give Your Excellency the assurance that on that point Americans will receive exactly the same treatment as Frenchmen in a similar situation.”

It will be observed that a distinction between the status of claims of those who had acquired nationality “as of right under the treaties and those who had acquired their nationality otherwise than by treaties of peace” was sought to be made by the Ambassador, and as to the latter class of persons he stated that Americans would receive “exactly the same treatment as Frenchmen in a similar situation.”

In his note of February 10, 1921,³⁶ the Ambassador stated:

“I had told my Government of a request which had been verbally made to me by Your Excellency’s Department, the object of which was to know whether as concerns the return of their property to American citizens happening to be in the same situation in France as Alsace-Lorrainers here, there would be reciprocity, not only in the said property being returned, but in the way this would be effected.

“My Government, to whom I had put the question, has just informed me that such property will be returned in the simplest and promptest manner, since it will be enough that the request be forwarded to us through the diplomatic channels, for my Government to cause the restitution to be effected.”

This Department, in order to make certain that there should be no misunderstanding as to the claims of persons covered by the agreement, replied to the Ambassador’s note on February 18 [19], 1921,³⁶ calling attention to the fact that its previous inquiries relative to the allowance of the claims of American citizens had not been directed to the claims of those Americans who were similarly situated as the Alsace-Lorrainers, but to the claims of American citizens generally.

Under date of February 25, 1921 the French Ambassador stated^36a that the only exception to the undertaking to release American property “by an administrative decision” would be with respect to those claimants who at the time of acquiring their American nationality had “in accordance with an extraordinary law voted in their country in 1913, preserved their German nationality while swearing allegiance to the United States”.

It will be observed from this correspondence that special effort was made to show that the assurance of reciprocal treatment was not to be confined to limited types of American claimants, and that the claims of naturalized American citizens of German origin were not to be excluded upon the ground that “no German could by operation of the Treaty of Versailles acquire American nationality”; that the effort to satisfy the requirement of the American statute, by limiting the expressed understanding of the reciprocal agreement to the claim of those “American citizens occupying in France the same situation as the Alsace-Lorrainers here”, was abandoned, and but one limitation as to the treatment to be accorded to the claims of American citizens was injected into the agreement; that the assurance that reciprocal treatment would be extended to the claims of all American citizens, excepting only those who, in acquiring American citizenship had retained their German nationality under the provisions of the Delbrook Law of 1913, was fully and freely given. In other words, the assurance was given that the claims of American citizens without regard to whether they were citizens by birth or by naturalization without limitation as regards the date of sequestration, would receive the same treatment as was accorded by the United States to those former German citizens of Alsace-Lorraine who acquired French citizenship in 1920, subsequent to the enactment of the American Sequestration Statutes and of the seizure of their property.

The one exception insisted upon has not been objected to by this Government, and does not arise in this instance or any other claim so far as this Department is aware. Those naturalized American citizens of German origin who, under the provisions of the German Act of 1913, retained their nationality by authority of the German Government, were not provided for by the amendment of June 5, 1920. No claim is now urged on behalf of such a citizen. And it may be conceded that in those instances in which naturalization had been initiated subsequent to 1913, and there are indications of the fact that the claimant has retained his German citizenship, he may appropriately be required to submit evidence fully determinative of citizenship status.

In connection with the foregoing, the French Ambassador also made promise of facilitating the consideration and allowance of all claims, and noted that the property would be restored “in the most simple and expeditious manner possible”, and that “it would be sufficient to have the application forwarded” to the French authorities “through diplomatic channels, to have the Government itself officially move the release of the property”.

In reliance upon this assurance, the American officials gave immediate attention to the consideration of the claims of French citizens and expedited their allowance. The requirements of evidence were lightened, and the question of citizenship satisfied in many instances by the assurance only of the French authorities that the individual claimant was a French citizen.

This Government has already allowed the claims of more than 240 French claimants, for a release of property of a value in excess of $2,500,000.00, many of whom were former German citizens and had acquired French nationality subsequent to the beginning of the war and subsequent to the sequestration of their property, and, I am informed, that there are few, if any, pending claims of French citizens growing out of the sequestration of German property, other than those referred to in the Department’s note to the French Embassy of August 31, 1926. A copy of this note was enclosed in the Department’s instruction No. 2025 of September 4, 1927.³⁷

The French authorities have not reciprocated the action of this Government, but have denied the claims for release in some instances, as in the present, of native born American citizens of German descent, in other instances upon an unmerited question of the validity and effect of naturalization under the Statutes of this Government, and the naturalization treaties between this Government and Germany and Austria-Hungary. The release from sequestration has been denied, in some instances, upon the ground of the absence of proof of the loss of German nationality even in instances in which the individual concerned had never had German nationality, or had acquired his American citizenship by naturalization subsequent to the naturalization conventions of 1868 with Germany, or of 1870 with Austria-Hungary, and many years prior to the enactment of the Delbrook Law of 1913. In other instances, the denial of the claim has been based upon the contended-for disqualification of American naturalization subsequent to the outbreak of the war. In still other instances, the delayed naturalization has not been objected to, but a requirement has been imposed of proof of ownership antedating August, 1914, and with relation to securities, such as stocks and bonds, of proof of identity of the property by serial number.

On the other hand, this Government, since the enactment of the Amendment of June 5, 1920, and the acceptance of the assurance of reciprocal treatment, has never opposed the claims of French citizens, formerly German, on the score of possible retention of German nationality, nor on the ground of failure of proof of the loss of German nationality. This Government has never denied to those French citizens, who acquired their citizenship subsequent to the outbreak of the war and subsequent to the sequestration of their property, the necessary relief to secure to them a release of their property; nor has this Government declined to recognize the validity and effect of the provisions of the Annex following Section V of Part III of the Treaty of Versailles, a Treaty to which it is not a party. On the contrary, this Government, in enacting the Amendment of June 5, 1920, recognized the hardships imposed upon the individual owner of the property, by the application of our statutes as originally enacted. It recognized the validity as between France and Germany of the Treaty of Versailles and the effect of the change of nationality of the residents of Alsace-Lorraine and provision was made for the recognition of such claimants as French citizens and for the release of their sequestrated property.

The unmerited hardship and immateriality of the requirement of proof, antedating the war, and with relation to securities, that these be identified by serial number, is patent from the following. Such proof was not always available to a claimant at the date of the filing of a claim. In most instances, these purchases were made “Au Porteur”, upon the order of the claimant, through a German bank and by its agent or correspondent in Paris. It was not the practice to furnish the purchaser with the serial number of securities except upon request. But in each instance, the evidence submitted by the claimant established the fact of purchase, the number and character of these securities, and it was further evidenced that the securities named were among those securities seized by the French authorities and held in these sequestrated accounts. The evidence in all cases was direct, not inferential, and was as complete as the evidence required in all commercial transactions between the French banks holding the accounts, and their clients.

In the light of the established commercial practice, and recalling that the question at issue is one of title to securities purchased “au porteur”, it is not clear upon what principle of law the contention can be supported that a knowledge of the numbers of the securities, sequestrated by a Government, can vest in a claimant a better title to such securities than has been required in other instances in transactions between private individuals.

It is the opinion of this Government that it can not be meritoriously urged, that the mere lack of knowledge of the numbers of the securities, evidences any less title in the claimants than is recognized in commercial transactions. Nor can this Government admit that there is justification in now imposing upon American claimants, as an essential element of proof of title, that item of proof not required in commercial transactions, seldom resorted to in trade and obviously a non-essential as concerns title and ownership in the abstract. Nor will the contention, heretofore advanced, avail to defeat the claimants’ rights, namely, that the securities, purchased “au porteur” by the banks for their clients, had been pledged by the banks in order to obtain advances, for such action would not vitiate all right and title of the claimant owner, especially in these instances where sequestration has been effected by the French Government, and there is opposed to the claim of title of the claimant the contention only of the right of the French Government to confiscate.

If, however, the French Government is determined to persist in its contention that the securities claimed cannot be regarded as the property of the claimants, but must be regarded as the property of the enemy banks for whose account they were held in France, it would have to be conceded that such claimants were at least entitled to be reimbursed from the sequestrated property for an established debt, in accordance with the principle supporting the practice established by the two Governments in connection with the claims of Société Glanz and Company, The American Trading Company, Kunhard and Company, Mrs. Laura Eisenmann-Arendt, Franckel and Company, the United States Cotton Corporation, The Enterprise Manufacturing Company, and The Coe Manufacturing Company, as well as certain similar claims of French citizens filed with the Alien Property Custodian of this Government, and which was the subject of correspondence between this Department and the French Embassy at this capital, consisting of the Department’s note of August 31, 1926, referred to above, and the enclosed copy of the reply of the French Embassy dated March 7, 1927, and the Department’s acknowledgment of March 31, 1927.³⁸

It is desired that you should bring the substance of the foregoing to the attention of the French Foreign Office and express the confident hope of this Government that it is only necessary, with relation to the instant claim of Miss Myer and all pending claims of American citizens for release of sequestrated property, to point out the specific undertaking expressed by the French Ambassador and the failure of the French Government to observe its obligations, to insure that action which will be in accord with the spirit of the agreement of reciprocal treatment and extend to American claimants the same treatment and recognition of citizenship and property rights to sequestrated property as was accorded by this Government to all French claimants, native-born or naturalized.

I am [etc.]

Frank B. Kellogg

23. Neither printed.
24. Miss Eda G. B. Meyer.
24. The so-called Delbrück Law, published July 31, 1913, in Reichs-gesetzblatt, 1913, No. 46, p. 583.
25. In force Aug. 10, 1927; published in France, Journal Officiel, Lois et décrets, Aug. 14, 1927, p. 8697.
26. Malloy, Treaties, 1776–1909, vol. ii, p. 1298.
27. Ibid., vol. i, pp. 53 (Baden), 60 (Bavaria), and 949 (Hesse); vol. ii, p. 1895 (Württemberg).
28. Ibid., vol. i, p. 45.
29. Malloy, Treaties, 1910–1923, vol. iii, pp. 3329, 3371.
30. Act of Oct. 6, 1917; 40 Stat. 411.
31. Amendment of July 11, 1919; 41 Stat. 35.
32. Not printed.
33. 41 Stat. 977.
34. Not printed.
34. Not printed.
35. Malloy, Treaties, 1910–1923, vol. iii, pp. 3329, 3462.
36. Not printed.
36. Not printed.
37. Note not printed.
37. Neither printed.
38. None printed.