« PreviousContinue »
persons voluntarily resorting to its territories. Any theory of an equally balanced conflict of the laws between the two states is absolutely and necessarily excluded in the case of native-born citizens of either, they being in turn the sons of lawful citizens.
" It is proper that you should temperately but distinctly acquaint the Swiss Government with the view here entertained of the present question. Your firm and earnest remonstrance should be interposed in such shape as to leave no doubt in the mind of the Federal Council of the sincerity of our attitude and of our determination to uphold the rights of our native-born citizens, and the council should not be left in ignorance of the severe strain which the claim of indefinitely inherited allegiance so put forth in the case of Mr. Schneider and any person similarly situated may perforce impose upon the traditional and fast friendship which the United States feels for Switzerland.”
Mr. Olney, Sec. of State, to Mr. Peak, min. to Switzerland, March 6, 1897,
For. Rel. 1897, 502; MS. Inst. Switz. III. 59. See the claim of
“ In your note of March 24, relative to the military service of Mr. Frederic Arnold Schneider, of Pfaffikon, Canton of Zurich, your ercellency asks that the Federal Council reconsider its decision of March 5 last, which, in your opinion, is in harmony neither with the principles of international law nor with the treaty of settlement between Switzerland and the United States of November, 1850.
“ We regret the inability to recognize the logical basis of these arguments, which we should regard rather as being in manifest contradiction as well with the universally recognized doctrines of international law as with the fundamental principles, beyond all controversy, according to which a sovereign and independent state determines for itself the conditions and the manner whereby the quality of citizenship is acquired or lost.
“ We are far from contesting that Mr. Schneider may not be, by the laws of the United States, an American citizen, but it remains no less true that by our public law he is a Swiss citizen, and that as such, finding himself within our jurisdiction, he is subject, in the same manner as all other citizens of Switzerland, to the inherent obligations of such quality. “ Your excellency
is not ignorant of the fact that Swiss nationality, by virtue of a principle sanctioned by the constitution itself, is not lost by the simple fact of acquisition of a foreign domicil, but only following a renunciation expressly declared in the prescribed forms of the law of July 3, 1876. Now, if neither the father nor the son, Schneider, has as yet made this declaration, it follows that both are still citizens of their commune of origin of Pfaffikon,
and hence citizens of the Canton of Zurich and of the Swiss Confederation.
** We have certainly at heart the fulfillment of all our obligations contractod by solemp treaties with other countries, and we would not await the representations of your excellency to conform to the convention of November 25, 1850, if it were really applicable in this case. Article II. of this treaty declares, indeed, that the citizens of each of the two governments shall be exempt, in the other, from all personal military service, but there is not the shadow of a doubt that in order to determine the persons who shall be regarded as citizens of each of the two countries, the treaty must necessarily be referred to the laws in force in each of the two countries. It is, therefore, for Switzerland, the Swiss law which determines if a certain person living in Switzerland should be considered as a Swiss citizen; a contrary doctrine would imply the pretention of imposing upon Switzerland legislation not its own, which would be inadmissible and irreconcilable with its position as a sovereign and independent state.
“ If the treaty of November 25, 1850, had the meaning which your excellency wishes to attribute to it in your letter of March 24, it would be difficult to understand what object the Government of the United States had in proposing many times the conclusion of a treaty stipulating, among other things, that'any Swiss citizen who has been or shall be or is naturalized in the United States of America conformably to the law, shall be regarded in all ways and in every manner by the Swiss Federal Government as a citizen of the United States of America and treated as such by the Swiss Confederation. Such a stipulation would be, indeed, superfluous if Switzerland was already obliged in virtue of the treaty of 1850 to recognize as American citizens and to treat as such all who could prove having acquired such quality conformably to the laws of the United States.
“ The attitude taken by us in this matter is that which we have always taken toward all other Governments and that all other Governments have taken and take toward us. It is sufficient to recall, in this regard, the French laws of June 26, 1889, and of July 22, 1893, the effects of which were so widespread as to entail inconveniences upon many foreign governments.
“We can not, then, in the absence of any international stipulation, admit that Mr. F. A. Schneider, son of a Swiss citizen, not having renounced his original nationality, should be regarded otherwise than all other Swiss citizens and freed from military duty. Mr. Schneider is not in the least forced to keep his Swiss citizenship against his will. He can renounce it in the forms provided by the law of July 3, 1876, and, if he does not do so, it is to be presumed that it suits him to remain a Swiss citizen in spite of the duties inherently attached to such quality.
“ Besides, even in the case where the Swiss law would refuse to Mr. Schneider the right of renouncing his original nationality, it would not be disputed that Switzerland has the right to exact that he fulfill his obligations toward her. This point of view was participated in by an eminent American statesman, Mr. Daniel Webster, Secretary of State, who, in a note of June 1, 1852, to the minister of Prussia to the United States the minister of the United States near the King of Prussia], observed that if a government did not accord to its subjects the right of renouncing their allegiance, it could, in all justice, reclaim their services any time they were found within its jurisdiction.
“ We wish to hope that these explanations will suffice to convince your excellency that, greatly desirous as we are of maintaining with the United States of America the best relations and of being in accord with your Government, we can not accede to the request made in your letter of March 24 without departing from the laws and the constitution confided to our safe keeping."
The Swiss Federal ('ouncil to Mr. Peak, U. S. min., April 20, 1897, For.
Rel. 1897, 501.
“But little appears to be gained in the way of detailed analysis of and answer to the note of the Swiss Federal Council of April 20, inasmuch as nearly all of the elaborate argument therein presented rests on a fallacious disregard of the essential point which the Department's instruction and your note of March 24 endeavored to present clearly to the Federal Government, viz, that, whatever may be said touching the application of express treaties of naturalization to the case of native subjects emigrating from one state to cast their lot in another and to become citizens thereof by due process of law, that conventional feature is wholly lacking in the case of persons native-born citizens of citizen fathers. By no just process of reasoning can it be claimed that such native-born citizens of citizen parentage are in the category of emigrants of whom the native state may exact renunciation of their original status as a condition to recognizing the acquisition of a new status.
What the note of the Swiss Federal Council says, therefore, respecting the necessity of treaties of naturalization to determine points of allegiance not covered by the general treaties of amity and commerce between states can not be admitted as having reference to the case of a native-born citizen of a citizen father.
“ It is observed that the note of the Swiss Federal Council rests its argument in part upon a citation from a note stated to have been written June 1, 1852, to the United States minister in Prussia by Daniel Webster, when Secretary of State. The citation is not quite accurate, for no instruction of the date and character described was written by Mr. Webster. Under date of February 14, 1853, Mr. Webster's successor, Edward Everett, writing to Mr. Barnard at Berlin, in treating the case of naturalized citizens of the United States who had been drafted into the Prussian army upon their return to Prussia, refers to a letter written by Mr. Webster to a rotary public of New York, named J. B. Nones, of June 1, 1852, in which, allowing for differences for translation, much the same language is found as in the citation made by the Swiss Federal Council.
“ It is to be insisted upon, however, that the reference is only valid to the case involved, namely, those citizens of a foreign state who emigrate in evasion or omission of military service and acquire another status by naturalization. As to such persons the doctrine of dual allegiance equally subsisting toward the country of origin and the country of adoption, and necessarily regulated by a treaty of naturalization, may be applied as an academic proposition; but in point of fact the claim is not pressed, so far as known, by any state except Italy and Russia, unless the emigration shall have been at or near the military age and constitute of itself an evasive violation of the law of origin.
“ It is observable that throughout the note of the Swiss Federal Council the right of renunciation of citizenship is spoken of as pertaining to the individual, provided it be declared in the prescribed forms of the law of July 3, 1876. Although not recognizing the obligation of the native-born American son of an American citizen father to make the application of renunciation referred to, that procedure may afford a practical solution to a position which otherwise is and would remain intolerable as between two sovereign states.
Mr. Sherman, Sec. of State, to Mr. Peak, min. to Switzerland, May 12,
1897, For. Rel. 1897, 566 ; MS. Inst. Switz. III. 71. The case was terminated by the acceptance by the Swiss Government,
through the department of justice of the canton of Zurich, of a formal application which Mr. Schneider had made for release from Swiss citizenship. (For. Rel. 1897, 568, 569.)
In response to an inquiry whether a passport should be refused to a native-born Swiss who returned to the country of his origin after acquiring American citizenship, unless he could show that he had * formally renounced his Swiss citizenship in the manner prescribed by Swiss law," the Department of State said: “ The laws of the United States do not require the consent of the Government of the alien's origin or a compliance with the laws of such country relative to renunciation of allegiance as a prerequisite to naturalization here. You would, therefore, not be justified in making it a condition to the issuance of a passport that the applicant shall show that he has formally renounced Swiss citizenship in the manner prescribed by Swiss law."
In connection with this subject the legation raised the question whether a Swiss, in obtaining naturalization in the United States, could, without false swearing, renounce his allegiance to the land of his birth and be considered a bona fide citizen of the United States, so long as he conserved his Swiss citizenship, which he well knew that he could not lose, except By his own formal renunciation of it.
The Department of State replied: “This is, in effect, Can a person who obtains his certificate of naturalization by fraud be considered a bona fide citizen of the United States? Naturalization being a judicial act, there is no authority on the part of the executive to declare that a naturalized citizen of the United States is not a citizen because of fraud in the procurement of his citizenship. That can only be determined judicially by a competent court of the United States. But this does not interfere with the exercise of the discretionary power vested in the Secretary of State in the matter of granting passports and protecting American citizens abroad, and the Department's standing rule is to withhold a passport from any holder of naturalization papers found to have been obtained by fraud."
Mr. Hay, Sec. of State, to Mr. Leishman, min. to Switzerland, Dec, 12,
1899, For. Rel. 1899, 764.
" The information given below is believed to be correct, yet is not to be considered as official, as it relates to the laws and regulations of a foreign country.
“ Every Swiss citizen is liable under Swiss law, to military service from the beginning of the year in which he becomes 20 years of age until the end of the year when he becomes 44. Every Swiss of military age who does not perform military service is subject to an annual tax, whether he resides in the Confederation or not, or to punishment for nonpayment of the tax if he returns to Switzerland.
“ If a Swiss citizen renounces Swiss allegiance in the manner prescribed by the Swiss law of July 3, 1876, and his renunciation is accepted, his naturalization in another country is recognized, but without such acceptance it is not recognized, and is held to descend from generation to generation.
“Before he returns to Switzerland an American citizen of Swiss origin should file with the cantonal authorities his written declaration of renunciation of his rights to communal, cantonal, and in general Swiss citizenship, with documents showing that he has obtained foreign citizenship for himself, wife, and minor children, and receive the sealed document of release from Swiss citizenship through the direction of justice of the canton of his origin. If he neglects this and is within the ages when military service may be required, he is