Foreign Relations of the United States Diplomatic Papers, 1938, The British Commonwealth, Europe, Near East, and Africa, Volume II

351.117/470

The First Secretary of Embassy and Consul at Paris ( Murphy ) to the Secretary of State

[Extracts]

No. 1436

Paris , January 4, 1938.
[Received January 12.]

Sir: I have the honor to acknowledge the receipt of the Department’s instruction dated August 18, 1937,⁶⁷ referring to the Embassy’s despatches Nos. 166 of December 2, 1936, 243 of December 30, 1936,⁶⁸ 345 of February 10, 1937, and 422 of March 6, 1937,⁶⁹ which set forth the results of its efforts to clarify certain provisions of the French nationality law and contained new information as to the French military service requirements. The Department enclosed with its instruction a copy of the proposed new Paragraph 48 of the Notice to Bearers of Passports, which it revised after the receipt of the above-mentioned despatches of February 10, 1937 and March 6, 1937, and requested that the Embassy examine it and furnish an opinion as to its accuracy.

Following the receipt of the Department’s instruction a copy of the revised paragraph 48 was sent to the Foreign Office for examination and comment. The Foreign Office’s reply dated October 26, 1937, is enclosed in copy and translation. The Embassy has studied this reply in the light of the information upon the subject previously obtained from the Foreign Office, and several visits have subsequently been made to the Foreign Office in an endeavor to clarify certain of its statements.

It will be observed that after studying the Department’s conclusions, the Foreign Office finds that although the principal points of the French regulations concerning the subjects discussed are correctly presented, there are certain details that are inaccurate, and that rather than take up each detail separately the Foreign Office has found it preferable to review the whole subject.

The Department will further observe that with respect to the loss of French nationality through the possession of a foreign nationality, French legislation recognizes two different standards, one defined by the law of August 10, 1927, and the other defined by the old Article 19 of the Civil Code, and that the latter, although repealed, is still applied in examining the validity of a foreign nationality acquired before August 10, 1927. This fact evidently has not been clearly brought to the Department’s attention in the Embassy’s previous despatches and therefore apparently was not taken account of in the Department’s reckoning.

The Department’s attention is particularly called to the Foreign Office’s statement that for an individual subject to the old law, no account is taken of the ten-year period envisaged in the Law of 1927, and that for an individual subject to the latter law, there is no question of the integral performance of active military obligations to France. After a careful study of these differences and of the data heretofore collected, the Embassy desires to make the following comments upon the conclusions set forth in the Department’s revised Paragraph 48 of its Notice to Bearers of Passports.

A. Recognition by the French Government of the Naturalization Abroad of a Frenchman

In its note of October 26, 1937, the Foreign Office agrees in substance with the statements made in its previous notes in respect to the conclusions reached by the Department in its first paragraph. It has stated on page four⁷⁰ that “the foreign nationality acquired without authorization before the expiration of the ten-year period (Law of 1927), or acquired by a man in an irregular military status (old law), remains irregular, even when the ten-year period has passed, or the age of 53 years.” And on page six⁷¹ that “until ten years have gone by counted from either incorporation in the active army or the entry on the military liability list in case of exemption from active service, the acquisition of the foreign nationality does not cause the loss of French nationality unless it has been authorized by the French Government.” This paragraph refers, however, only to the case of a French citizen naturalized since August 10, 1927. For the French citizen naturalized abroad before that date, no account is taken of the ten-year period.

The evident fact that the Department has had in mind only the provisions of the Act of August 10, 1927, has resulted in some inaccuracies in the statements made in its second paragraph.

The Department’s conclusion that the loss of French citizenship under French law, as a result of naturalization abroad, is automatic after the running of the ten-year period mentioned in Article IX (1) of the Law of August 10, 1927, only if the individual concerned is in good standing with the French military authorities, is not in agreement with that set forth in the latest Foreign Office note, since it is stated on page three of that note⁷² that “for an individual subject to the new system, there is no consideration of the integral performance of active military obligations. It suffices that this performance has already commenced, that is to say, that the individual has been incorporated, or, in case of exemption, included in the census of those liable to military service, for the ten-year period to begin.^*Thereafter, it does not matter whether the individual has, for instance, deserted. After the expiration of ten years, he will be able to acquire validly a foreign nationality without^† previous authorization, and thus free himself automatically from French allegiance and from military obligations toward France.[”] Reference is also made to the second example set forth at the bottom of page six of the note of October 26, 1937.⁷³

In the Department’s third paragraph,⁷⁴ the statements in its first sentence and in its second [fourth?] sentence as far as the second semicolon are in agreement with the Foreign Office’s note of October 26, 1937, and with its previous declarations; the case envisaged being only that of the individual naturalized abroad after August 10, 1927. Reference is made in this connection to the third example presented on page seven⁷⁵ of the latest note from the Foreign Office. Example four on pages five and six⁷⁶ of this note refers to the cases of those individuals still subject to the old law (Article 17 of the Civil Code).

With respect to that part of the third paragraph reading, “and that while thus delinquent he cannot lose French nationality until he is 53 years of age, at which time military defaulters may return to France without encountering difficulties.”⁷⁴ reference is made again respectively to example three on page seven,^‡ concerning only those individuals naturalized abroad after August 10, 1927, in which it is stated “that the delay of ten years envisaged by the law of 1927, Article 9, cannot have commenced to run for those individuals, never having been incorporated or included in the census of those liable to military service, and it must be concluded that their naturalization abroad will never be opposable by legal right to the French authorities, although being erased from the army rolls (at the age of 53 years), they are no longer subject to any military obligations;” and to the paragraph at the bottom of page three stating that “However, if a sentence had been pronounced against the deserter while he was still French, the sentence would continue to be executory in France, even though the foreign nationality acquired in the meantime be recognized by the French authorities.”⁷⁷

The last sentence in the Department’s third paragraph is confirmed by example three on page seven of the Foreign Office’s note of October 26, 1937.

Persons naturalized through the naturalization of a parent.

No reference has been made by the Foreign Office in its latest note to the status under French law of those persons naturalized abroad through the naturalization of a parent. It may be assumed, therefore, that the Foreign Office agrees with the Department’s conclusions in this regard, which were based upon the statements made on page two of the^§ Foreign Office’s note of December 23, 1935, enclosed with the Embassy’s Despatch No. 166 of December 2, 1936.⁷⁸

[Omitted portion of this despatch consists of a lengthy quotation from La Nationalité Francaise, Droit Positif et Conflits de Lois by Pierre Louis-Lucas, Professor of Law at the University of Dijon, whose interpretation is at variance with that of the Foreign Office as reported above.]

B. Renunciation of French Citizenship by Persons Born in the United States of French Parents

The Foreign Office has failed to comment upon this subject in its note of October 26, 1937. The assumption may be, therefore, that it had nothing to add to the explanation furnished in its note of October 13, 1936, which was reported in the Embassy’s despatch of December 2, 1936.⁷⁸

C. Documentation of American Citizens Who Are Liable to Military Service in France

The explanation with regard to this subject offered by the Foreign Office in its note of October 26, 1937, appears to agree with that previously furnished to the Embassy, and therefore with the Department’s conclusions.

D. Exemption of American Citizens of French Origin From Military Obligations in France Under the Decree Law of October 30, 1935

The note of October 26, 1937, fails to add anything to the information previously furnished by the Foreign Office upon this question. After reviewing that information, the Embassy is in accord with the Department’s conclusions. With reference to the Department’s concluding paragraph, it is noted that the Foreign Office has stated in its note of October 13, 1936, that “the provisions of the decree-law of October 30, 1935, modifying Article 98 of the law concerning the recruitment of the Army, are only applicable from the time of its promulgation.”

Respectfully yours,

Robert D. Murphy

[Enclosure—Translation]

The French Ministry for Foreign Affairs to the American Embassy

[ Paris , October 26, 1937.]

The Ministry of Foreign Affairs has the honor to acknowledge the receipt from the Embassy of the United States of its Note No. 592 of September 2, 1937, and of the document annexed to it, regarding the national situation and the military obligations of persons of French origin who have acquired American nationality by naturalization or by operation of American law.

After a careful study of this document, the Ministry finds that although the principal points of the French regulations on the subject are correctly set forth, there are certain details that do not seem to be quite accurate.

Rather than take up each detail separately, the Ministry has deemed it preferable to summarize in turn the whole question, and takes the liberty of presenting below to the Embassy two concise outlines (A and B), representing the general position of those concerned, on one hand (A) from the point of view of nationality, and on the other hand (B) from the point of view of military service.

It should be specified that, from the French point of view (certain European countries have a different conception), if active military service is not obligatory for every Frenchman, on the other hand, any one discharged from his allegiance to France is, ipso facto, freed from all military obligations toward her.

A. National Position, From the French Point of View, of Persons of French Origin, Who Possess a Foreign Nationality by Naturalization, or by Operation of the Law

It should be understood to what extent the possession of this foreign nationality entails, or not, the loss of French nationality.

In this respect, present French legislation recognizes two different systems—one defined by the law of August 10, 1927 (present system), the other defined by former Article 19 of the Civil Code (former system). This latter text, although repealed, is still applied in certain cases, for the validity of a foreign nationality acquired before August 10, 1927, must be considered in the light of the said former Article 19, and not of the law of 1927.

The two systems, although governed by the same principles (of individual liberty), and by the same concern (of national defense), rest upon two different standards. The old standard consists in the discharge of active military obligations, an individual standard, the application of which varies in each case, the active obligations not having the same duration for all. The new standard consists, on the contrary, in the lapse of an indispensable period of ten years, reckoning from a fixed date, in principle, the date of incorporation in the active army. The two policies are therefore somewhat different and cannot be combined. For an individual subject to the old system, no account is taken of the ten year period; for an individual subject to the new system, there is no consideration of the integral performance of active military obligations. It suffices that this performance has already commenced, that is to say that the individual has been incorporated, or, in case of exemption, included in the census of those liable to military service, for the ten year period to begin. Thereafter, it does not matter whether the individual has, for instance, deserted. After the expiration of ten years, he will be able to acquire validly a foreign nationality without previous authorization, and thus free himself automatically from French allegiance and from military obligations toward France.

However, if a sentence had been pronounced against the deserter while he was still French, the sentence would continue to be executory in France (like any common law sentence), even though the foreign nationality acquired in the meantime be recognized by the French authorities. This is only the application of a general principle of law, and is applicable whatever be the standard adopted for the loss of French nationality.

Likewise, any acquisition of foreign nationality had under irregular conditions (whatever be the system applicable) remains irregular, even if the required conditions, not brought together in the beginning, eventually are (brought together).

In other words, foreign naturalization acquired without authorization before the expiration of the ten year period (new system), or acquired by a man in an irregular military status (former system), remains irregular, even when the ten year period has passed, or the age of 53 years, at which the military offence which caused the irregular situation is prescribed. Naturally those nationalities irregularly acquired can always be regularized, however, by special decree of liberation from the ties of allegiance.

These common principles being specified, the differences between the two systems are set forth as follows:

I. Provisions of the Civil Code (former Article 17)

“Lose French nationality:

“The Frenchman who is naturalized in a foreign country or who acquires, at his request, foreign nationality by operation of the law.

“If he is still subject to the obligations of military service in the active army, naturalization in a foreign land will only cause the loss of French nationality if it has been authorized by the French Government;”

A jurisprudence practically invariable, and regularly followed by the French judicial authorities, assimilates in this regard the former “reserve of the active army” to the active army properly so called.

The deduction then is:

1) Individuals never having served in France, or having served, finding themselves still classed in the active army, or in the reserve of the active army at the time of their naturalization abroad—

Their naturalization is not by legal right opposable to the French authorities.

2)^*

Individuals having been declared defaulters when they were still in the active army (or in the reserve of the active army)—

They cannot henceforth be validly naturalized abroad until they reach the age when their names are erased from the army rolls. In fact, until that time, and by reason of their default, they must be considered as “being still subject to the obligations of active military service”, since there was a refusal to discharge those obligations, a refusal established precisely by the declaration of default;

3)^†

Individuals who have been declared in default when they had already left the active army, (and the reserve of the active army)—

Contrary to the preceding case, this declaration would not present an obstacle to subsequent foreign naturalization of the persons concerned; their subsequent default does not in fact preclude their having satisfied, hypothetically (in theory), their active military obligations.

4) Individuals who have passed the age limit for military service. Whatever has been their military past, even as defaulters, they are then struck off of the army rolls. Under these conditions they are no longer subject to any military obligations, active or non-active, and consequently no obstacle exists, under the provisions of the Civil Code, to their naturalization in a foreign country.

II. Provisions of the Law of 1927 (Article 9, Paragraph 1)

“Lose French Nationality:

“The Frenchman who is naturalized abroad or who, on his own request, acquires a foreign nationality by operation of the law, after the age of twenty-one years.

“However, until ten years have gone by, counted from either enlistment in the active army or the entry on the military liability list in case of exemption from active service, the acquisition of the foreign nationality does not cause the loss of French nationality unless it has been authorized by the French Government;”

Under this regime, it will be well to distinguish:

1) The individuals having been incorporated or included in the census of those liable to military service, and naturalized abroad less than ten years after that date.

Their naturalization is not opposable, by legal right, to the French authorities.

2) The individuals having been incorporated, or included in the census of those liable to military service, and naturalized abroad more than ten years after that date.

Their subsequent foreign naturalization is opposable to the French authorities, even if they have been declared defaulters, or deserters, after a beginning of the performance of active service.

It suffices that they have been effectively included in the census of those liable to military service (or incorporated), and that ten years have since elapsed. Likewise, it is not necessary to discern whether the declaration of default occurred during or after this delay of ten years; in both cases it is of no consequence from the point of view of nationality.

3)^‡

The individuals never having been incorporated, or included in the census of those liable to military service.

The delay of ten years envisaged by the law of 1927, Article 9, cannot have commenced to run, and it must be concluded that their naturalization abroad will never be opposable by legal right to the French authorities, although being erased from the army rolls, they are no longer subject to any military obligations.

B. Military Situation, From the French Point of View, of Young Men Possessing Both French and American Nationality

Two cases to be envisaged:

a) French citizens possessing at the same time American nationality by reason of birth in the United States.

b) French citizens possessing American nationality for other reasons.

The former are governed by Article 99 of the Law of March 31, 1928, concerning the recruitment of the army;

The latter are governed by Article 98 of the same law.

According to the provisions of Article 99 of the Law of March 31, 1928, the young men who, by the fact of their birth in the United States are both American and French, are exempted from military service in France if they prove, by the production of an official document delivered by the competent American authorities, either that they have complied with the military requirements of the United States, or that obligatory military service is not established there.

The above-mentioned certificate is drawn up in duplicate. The original is kept by the person concerned, to permit him, in case of need, to prove his position before the French military authorities. The duplicate is delivered to the French Consulate at the place of residence of the person concerned in order to enable that functionary, at the time of the performance of the census, to take the action necessary with the competent French authorities so that the person concerned may be in order with the French military law.

Should the young men concerned fail to produce the above-mentioned certificate, they are subject to the provisions of Article 98 (amended by the decree-law of October 30, 1935) of the law of March 31, 1928, concerning the army recruitment applicable, in the particular case:

a) To the young Frenchmen born abroad and residing there;

b) To those who have settled in a foreign country before the commencement of operations for the examination of recruits for the class of their age, or after that date if they have not been able, because of physical unfitness, to enlist as provided in Article 63 of the above-mentioned law of March 31, 1928.

The young men included in one or the other of these categories are exempted from actual presence under the colors on the production of a certificate, delivered by the French Consul within whose jurisdiction they have their domicile, proving that they fulfill the required conditions.

However, if, prior to having attained thirty years of age, they find that, by reason of a change of residence, they are no longer in a position to benefit by this exemption, they are held for the full duration of the active service imposed on the recruitment class to which they belong.

In cases where, by reason of unexpected changes in the order of cantonment of the French troops, these young men find that they are no longer in the required position to benefit by the exemption, they would be, if they have not attained the age of thirty years, incorporated for a period of time, not to exceed six months, in the body of troops nearest their residence.

The young men exempted from actual presence under the colors, by application of Article 98 of the recruiting law, are authorized, without losing the benefit of the exemption, to remain three months in France each year, during the period of obligatory residence abroad.

The permitted three months visit to France which the young men have not taken advantage of during the course of a year or for several years may accumulate, provided, however, that no visit can exceed one year in duration.

These young men are required to report to the Consulate, within the jurisdiction of which they are residing, any change of address, as provided in Article 55 of the recruitment law.

Authorizations for sojourns of more than three months may be granted for purpose of studies.

Requests for these authorizations must be made to the Ministry of War (2nd Bureau—Infantry Section) through the intermediary of the French Consul, within whose jurisdiction the interested person is residing.

The young men who have benefitted by authorizations for sojourns exceeding three months must reside abroad after thirty years of age for a period equivalent to the duration of the sojourns made in France, shortened by three months per year of sojourn, failing which they would be incorporated for the legal period of active service.

67. Ibid., p. 314.
68. Ibid., 1936, vol. ii, pp. 134 and 137.
69. Foreign Relations, 1937, vol. ii, pp. 311 and 313.
70. Paragraph beginning, “In other words, foreign naturalization …”, p. 320.
71. Paragraph beginning, “However, until ten years …”, p. 322.
72. Paragraph beginning, “The two systems, …”, p. 320.
73. However, if a sentence had been pronounced against the deserter while he was still French the sentence would continue to be executory in France, even though the foreign nationality acquired in the meantime be recognized by the French authorities. [Footnote in the original.]
74. Here, “previous” apparently refers to the acquisition of foreign nationality rather than to the expiration of the ten-year period. [Footnote in the original.]
73. Paragraph numbered 2, p. 322.
74. Foreign Relations, 1937, vol. ii, p. 315, paragraph beginning, “However, with regard to French citizens …”.
75. Paragraph numbered 3, p. 322.
76. Paragraph numbered 4, p. 321.
74. Foreign Relations, 1937, vol. ii, p. 315, paragraph beginning, “However, with regard to French citizens …”.
75. As to those individuals naturalized abroad before August 10, 1927, and therefore subject to the provisions of the old law (former Article 17 of the Civil Code), see example four on pages five and six of the note of October 26, 1937. [Footnote in the original.]
77. Post, p. 320.
78. The author’s explanation in his first paragraph requires clarification. His words “regardless of what procedure of naturalization is followed in the country whose nationality the person concerned acquired” might be interpreted to include the naturalization of a minor through the naturalization of his parent, and therefore to place the minor in the same position as his parent with regard to the provisions of Article 9 (1) of the law of 1927. If thereby the running of the ten-year period specified in the second paragraph of Article 9 (1) is also necessary as a condition for the minor’s loss of French nationality, as it is in the case of his parent naturalized abroad, then it would seem that the naturalization abroad of a minor would not be contrary to French law “except under special authorization by the French Government.” [Footnote in the original.]
78. Note from Foreign Office not printed; for despatch No. 166, December 2, 1936, see Foreign Relations, 1936, vol. ii, p. 134.
78. Note from Foreign Office not printed; for despatch No. 166, December 2, 1936, see Foreign Relations, 1936, vol. ii, p. 134.
79. Example 2 has been interpreted to mean that the individuals concerned have, through failure to respond, been declared defaulters while the recruitment class to which they belong is still considered a part of the active army, or of the reserve. [Footnote in the original.]
80. Example 3 has been interpreted to mean that the individuals concerned, paving completed the prescribed term in the active army, and in the reserve, may have been declared as defaulters because they subsequently failed to respond when called for duty in time of emergency, and their “insoumission tardive”, that is, their “subsequent (or delayed) default” when called in time of emergency does not preclude their having hypothetically (or in theory) satisfied their active military obligations. [Footnote in the original.]
81. Here, Example 3 has been interpreted to mean that the period of ten years provided by Article 9 of the Law of 1927 can never have commenced to run since it could only commence to run from the date of incorporation in the army or the inclusion in the census of those liable to serve, and that consequently the naturalization of individuals concerned will never be opposable automatically to the French authorities although those individuals, having been erased from the army rolls for the reason that they have passed the age of 53 years, are no longer subject to any military obligation. They must obtain the consent of the French authorities to naturalization abroad even after 53 years of age. [Footnote in the original.]