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treaty thus speaks in the present tense, and bars any and every claim, unless the persod presenting it is at the time of its presentation a citizen of the country througb whose agency the claim is to be enforced.”
We should have said unless the person in whose behalf the claim is presented was at the time of its presentation, &c.
Now, Mr. President and gentlemen of the Commission, we are brought to the consideration of this question: Does the French Government, speaking through its coun-sel here, deny or admit the right of a French citizen to change bis nationality ?
Mr. DE CHAMBRUN. Uuder certain conditions to be complied with, the French Gov. ernment has never denied the right to change nationality, and this results from what we call the principles of 1789.
Mr. BOUTWELL. Following what has been said by the counsel for the French Government, and availing myself of such information as I am able to command, I venture to state the position of the French Government in regard to citizenship, and the right of a French citizen to make a selection of nationality. There are some things which we do not put in statutes. They are those things about which there is no difference of opinion, and the statute of 18:18, passed by the Congress of the United States, in which it is declared that expatriation is a universal right common to all men, was only extorted from Congress by the objections and difticnlties that arose in our communications with other countries touching this matter of citizenship. For ourselves, we existed for a hundred years without ever having said that an American citizen might change his nationality, because it was an admitted right about which we had no doubts. We always admitted the right. We only declared our long-settled opinion when questions of difficulty arose in our relations with other Governments.
Mr. DE CHAMBRUN. The courts denied it up to 1868.
Mr. DE CHAMBRUN. The Supreme Court of the United States held to the doctrine of perpetual allegiance up to 106%.
Mr. BOUTWELL. Not unless the depationalized ci izen was domiciled in or returned to this country.
I can well understand that the Government of France, from the revolution of 1789, which broke down what bad previonsly existed of the feudal system, so recognized the right of the citizen to choose his nationality, that a legislative declaration was supe iuous. The 17th article of the French Code recognizes the right and most clearly. It proceeds upon the idea that a French citizen may denationalize himself, and it declares that he loses his citizenship in France when he is naturalized in another conntry, as he may also lose his French citizensbip when he does certain other things. Unquestionably in every country there exists the right to demand of a born subject, who may have become a subject or citizen of another country without having fulfilled those obligations to the country of his origin which the laws exact of him, the performance of those obligations which he had failed to meet before his expatriation whenever he returns to and puts himself under the jurisdiction of his native country. Ont of this claim of right, sometimes too broadly asserted, questions of difficulty have ari en between the Government of the United States and certain of the European Governments. I say with great respect that in our negotiations with France there has been no question as to the right of a French citizen to become an American citizen. The question of difficulty grew out of a practice prevalent in Great Britain, Germany, and perhaps in other continental states. A citizen would leave Great Britain, Germany, or France ata period of life when he was subject to military duty, become a citizen of the United States under our laws, and then return to his native land, live among his old associates, and escape the obligations that rested upon the persons with whom he had been identified. This course appeared to be a great injustice to bis neighbors and associates, and the Government looked upon it as an effort upon his part to shirk his proper responsibility in domestic affairs. Our difficulty was to devise means for the protection of this class of American citizens against demands which seemed harsh or unjust.
We saw the injustice of maintaining the proposition that a foreigner who had been naturalized in this coutry might return home, live permanently among his old associates, and plead bis American citizenship as exemption from military services, or the performance of other duties theretofore imposed upon him.
And I have to say, further, that all that Mr. De Chambrun has quoted of codes and decrees touching citizenship in France, with reference to persons naturalized in other countries, tends to support the positions I now maintain. Penalties are therein inposed for not performing military service. There is not one word, however, as far as I have observed, that has been read by him which goes to show that the French Gov. ernmeut does not recognize the right of a French-born citizen or subject to become a citizen of another country, provided always that he stays in tbat country, or, if he returns, that the obligations resting upon him when he left the country are fairly met.
Mr. DE CHAMBRUN. Now suppose a Frenchman naturalized in this country, and owds shares of the Bank of France, which, unless it has been very recently changed,
can be held only by Frenchmen-suppose he has naturalized here, what does become of the ownership of those shares ? Is it in the penalty that they must be turned over to somebody else—that he cavnot hold them? It is a penalty? It is merely a provision of the civil law affecting rights of that kind.
Mr. BOUTWELL. I should call it à penalty, certainly. A privilege is the enjoyment by somebody of that from which somebody else is excluded. Now, then, that is necessarily a privilege that is secured to French citizens who are permitted to own shares in the Bank of France to the exclusion of others. When you take from a person a privilege the taking of the privilege is a penalty. Therefore when you take from a French citizen naturalized in the United States, and on account of bis being so naturalized, the privilege of holding shares in the Bank of France, you impose a penalty upon him.
Mr. DE CHAMBRUN. In that case it does not relate to inilitary duties or to duties to the Government. It is a matter between individuals. The naturalization works as between individuals.
Mr. BOUTWELL. It is not necessary for us to consider what the effects of citizenship in another country are upon a born French citizen. The only point which concerns us is, for the moment-and I do not think that even that question is of supreme importance-to know whether under the French system the right of a French-born citizen to be a citizen of another corntry is recognized; and I submit with great confidence and with entire respect, both to this Commission and to the counsel for the Gov. ernment of the French Republic, that not only the 17th article of the Code, but all the bistory, both diplomatic and legal, goes to show that the French Government has recognized this right. That the Government has imposed penalties upon citizens who have denationalized themselves and neglected or avoided the performance of certain obligations resting upon them is all evidence tending to show that the right of a French-born citizen to become a citizen of another country is fully recognized.
The decree of the 26th of August, 1811, is of the same character. I am not going to trouble the Commission with reading any portion of it; but two things will appear from an examination of that decree:
First, that it was really a military order. It was issued in time of war. It was in an exigency. It was a military order, substantially like our military orders which we issued during the war. They passed away when the occasion for their enforcement had disappeared.
But, secondly, and of more importance, this decree recognizes, from beginning to end, the right of French citizens to make themselves citizens of another country.
I come now to the consideration of the question of natnralization, for the purpose of asking the Commission to reach a conclusion as to what inust bave been in the mind of the French Government when the treaty of January 15, 1880, was made. At that time the United States bad treaties with Austria, with Baden, with Bavaria, with Belgium, with Denmark, witb Ecuador, with Great Britain, with the Grand Duchy of Hesse, with Mexico, with the North German Union (made with Prussia in 1868), with Sweden and Norway, with Wurtemberg, and in all those treaties the right of citizens or subjects of the respective Goverumeuts to become citizens of the United States under our naturalization laws was fully set forth and declared; and the converse, that citizens of the United States might become citizens or subjects of these several countries, was also set forth and declared.
I assert, as well-established facts and of general knowledge, that in 1880 citizens or subjects of the nations of Europe might become citizens of the United States, and that citizens of the United States might become citizens or subjects of the respective Governments of Europe, and that these legal and practical propositions were substantially incorporated into the international law of the continent of Europe and of the United States.
What, I ask, is international law! It arises from the practice, from the agreement in treaties, from the general understanding, from the aggregate of conduct and judgment of nations and of persons having charge of public affairs. In 1880, when this treaty was made, we may fairly say that this was the international law of the two contiDeuts. To be sure, France had not become a treaty party to it, but the municipal history of France, the public history of France, the international dealings of France with other countries, its code and its decrees, all tend to show that France recognized the same law. Therefore she was bound also to recognize and maiutain the doctrine of expatriation precisely as she would have been had she assented to it by a solemn treaty.
But I say more than this. If the argument of the counsel for the French Government proves anything, it proves too much. If it proves anything in reference to the proposition, it is that the Government that he represents, aud I certainly do not intimate anythiog of the kind, but if he proves anything be proves that the Government t at be represents acted in bad faith in forming this treaty. Citizens of the United States and citizens of France are described in the language of the treaty, and who were meant? France must have known from her intimate acquaintance with the princi
ples and the practice of this Government from the very beginning that we recognize equally and alike as citizens of this Republic those who were born on our soil and those who, born in other lands, have been naturalized and made citizens of the United States under our laws. With us, as France well knew, there was no distinction. France could not have understood otherwise than that we understood the words, “citizens of the United States," as including equally and alike those born upon our owu soil and those naturalized under our laws. Therefore I say, with deference to this Commission and with entire integrity of opinion concerning the purpose of France, that the Government which my friend now represents here had no other idea when the treaty was made than that citizens of France, whether born in France or paturalized under her laws, were parties upon one side, and citizens of the United States, whether born upon our soil or naturalized under our laws, were parties on the other side.
Governments, aggregations of men, and represented by men, are only human things, and they are controlled by the considerations which operate upon us as individuals.
This treaty, then, like every other arrangement between Governments, was made as a matter of interest, but upon a principle. The interest was to protect on the part of the United States those persons who owe allegiance to the United States, of whom service might be required, and from whom contributions might be expected. On the part of France the interest was to protect and guard and help those who, as French citizens and owing allegiance to that country, could be depended upon for support, for aid, for contributions, for all the different services which the Government might require. In 1880 France had no interest whatever in undertaking to protect a person who, though born in France, had ten years before absolved himself from all allegiance to that Government, had taken upon himself obligations to another Government, and as to allegiance, to services, to contributions, to help, bad placed himself at the disposal of another country. Therefore, with confidence I maintain that in 1880 France bad no interest whatever in undertaking to protect persons who, though born in France, had absolved themselves from tbeir allegiance to France and had assumed allegiance and obligations and duties to another Government.
And, last of all, unless this question of citizenship is to be forever in doubt, in nubibus, it is in the interest of us all, representing nations here, that each Government should look to, provide for, protect, and defend its own citizens, and leave the citizens of other countries to be provided for, protected, and defended by the Governments to which they owe allegiance. And I go so far as to say-I have said in the brief, and I do not hesitate to assert it and to stand by it-that the Government of the United States had no power on the 15th of January, 1880, upon its own motion and by its own capacity, to act for or in behalf of any citizen of France. It could only indemnify citizens of France through the agency of the Government of France. I say, on the other hand, that on that day the Government of France had no capacity legally, bad. no jurisdiction, no anthority, to act in behalf of a citizen of the United States. Citizens of the United States must look to their own Government. Citizens of France must look to their Goverument. On the 15th of January, 1880, Archbishop Perché, of New Orleans, had been for ten years a citizen of the United States. There is no evidence that he ever returned to France, or that he had ever giveu any intimation of a purpose to return. Indeed, in his memorial, in the first paragraph, he declares tbat in 1870 he was naturalized, and that since that time he has been an American citizen. Those are his very words, and the proposition now is to declare that he is not an American citizen, but is a French citizen.
Mr. President and gentlemen of the Commission, I might very well have left all this to you, without an observation on my part. I fear that I may not have aided you at all in your deliberations, but for myself I have not a doubt that the treaty, which is the law under which we are acting, construed according to the natural and reasonable and proper use of language, speaks in the present tense. It is not retroactive, and those persons only who, when they present their claims before this tribunal, are citizens of France, can have a standing and prosecute their claims agaiust the United States; and those persons only who are citizens of the United States when they present their claims can appear and prosecute their claims against the Government of France.
Thereupon the Commission gave an opinion in these words:
The Archbishop Perché in his memorial states that he was naturalized in the United States in 1870. He does not claim to be a French citizen.
Without deciding upon any other cases which may be analogous to this, we think that the claim of Monseigneur Perché must be rejected, because it does not come within the terms of the treaty, which only provides for the claims of French citizens.
While making this decision, we deem it proper for us to express our regrut that we cannot take jurisdiction of a case which seems upon its face to be so equitable.
The claim was then disallowed for want of jurisdiction.
The Commission held, as had been contended by the counsel for the United States, that it was necessary under the treaty for the memorialist to aver and prove that he was a citizen of France when the losses occurred, and that he was a citizen of France at the time when his memorial was filed.
This rule was applied afterwards in all cases in which the question of citizenship was involved. At the end it appeared that there were thirtythree cases of persons claiming compensation who were citizens of France when the losses occurred, but who had in the intervening period been naturalized and accepted citizenship in the United States. These claims were all rejected. They amounted in the aggregate to $282,884.50.
EGLE AUBRY v. THE UNITED STATES, No. 25. In the memorial of Egle Aubry vs. The United States, No. 25, it was set forth tbat she was born in the territory of Orleans the 3d day of January, 1803, while that territory was a French colony and under the control of the French Government.
Upon this statement a demurrer was filed by the counsel for the United States.
In support of the demurrer it was contended on the part of the United States that inasmuch as the claimant was in the territory of Orleaus when that territory was ceded by France to the United States by the treaty of April 30, 1803, she thereby became a citizen of the United States inasmuch as the treaty of cession transferred to the United States full and complete jurisdiction over the inhabitants resident upon the territory without
any reservation whatsoever on the part of the French Government. In support of this position the counsel for the United States cited Wheaton's Elements of International Law (6th edition, p. 627), where, in treating upon the subject of naturalization, he says: • There have been also several cases of collective naturalization." The author then proceeds to mention the convention of April 30, 1803, of the United States with France for the cession of Louisiana, the treaty of 1819 with Spain for the purchase of Florida, the treaty of 1848 with Mexico, by which California was acquired, and the resolution of 1845 for the annexation of Texas, whereby the citizens of those various territories became citizens of the United States.
The brief in reply was filed by the counsel for the French Govern. ment, but it was prepared by the special counsel of the memorialist, as appears from a statement interposed by the counsel for the French Republic, and found in the record of the case.
The counsel for the memorialist relied upon the third article of the treaty, which is in these words:
The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admited as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of the citizens of the United States, and in the mean time they shall be maintained and protected in thu free enjoyinent of their liberty, property, and the religion which they profess.
The memorialist in this case was a woman of color, and until the ratification of the fourteenth amendment her citizenship had never been recognized in the United States.
It was claimed by the special counsel that she had not enjoyed the advantages and immunities that were guaranteed to her as a citizen of the territory of Orleans, and that consequently her French citizenship had remained unimpaired. In support of this position the case of one Decuir was cited, who was
H. Ex. 235-45
the son of a free negro. The father was a citizen of the territory of Louisiana when it was ceded to the United States. The son, having been impressed into the Confederate service, was discharged by the su. perior court of Alexandria, upon a writ of habeas corpus, and upon the ground that he was not a citizen of Louisiana, and, consequently, that he was protected as a French subject under the third article of the treaty of 1803.
Upon the issues thus presented the demurrer was sustained by the following decision of the Commission:
The claimant, Egle Aubry, a colored woman, was boru on the 3d day of January, 1303, in the territory of Louisiana, then a French colony, and therefore was by birth a citizen of France.
On the 30th day of April, 1803, the territory of Louisiana was by treaty ceded by France to the United States. The treaty “cedes to the United States forever and in full sovereignty the territory, with all its rights and appartenances, as fully and in the same manner as they bave been acquired by the French Republic in virtue of the treaty with Spain.” Spain had ceded the territory to France in October, 1801, and the cession did not affect slavery, which then existed there.
The treaty of cession contains no provision by which the inhabitants could remain, or by their option choose to remain, French citizens. On the contrary, the third article of the treaty obviously contemplates that they were to be American citizens. Article III of the treaty is as follows:
"ART. III. The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of the citizens of the United States; and in the wean time shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."
There is nothing in the treaty, therefore, to indicate that it was the intention either of France or of the United States that the inhabitants, or any of them, were to remain citizens of France. On the contrary, it was intended that they should be citizens of the United States. The demurrer is sustained, and the claim is disallowed.
PIERRE S. Wiltz v. THE UNITED STATES, No. 313. The right of heirs to appear by an administrator or other duly constituted authority was considered in the case of Pierre S. Wiltz v. The United States, No. 313.
The memorialist set forth that he was the public administrator for the parish of Orleans, in the State of Louisiana, and that as such he was duly appointed administrator of the succession of one Leon R. Del. rien, who died at New Orleans the 15th day of April, 1879. It was averred in the memorial that in the year 1862 certain property of the said Delrieu was destroyed at New Orleans by order of the provost marshal of the district, and that he was imprisoned under said order for the term of thirty-three days. The administrator claimed the sum of $ 47,000 as the value of the property taken and destroyed, and the damages due on account of said imprisonment were laid at $10,000 more. It was averred in the memorial that the beneficial owners were the creditors and heirs of said Delrien, and that they were legally represented by the memorialist.
Upon these facts as set forth the counsel for the United States interposed a deinurrer, alleging that the matters and things contained in the memorial were not sufficient under the treaty nor in law for the claimant to bave and maintain bis claim against the United States, in that it did not appear from said memorial that the alleged beneficial owners of said claim are or ever were citizens of France."
Upon the issue thus framed the question raised by the demurrer was heard by the Commission. The question was argued upon briefs and orally by the counsel for the respective Governments.