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thata person born in France, and by his birth entitled to citizenship in that country, may lose his citizenship without acquiring a new nationalty.
The Revised Statutes of the United Stases (sec. 1999) assert the right of expatriation in these words:
“Any declaration, instruction, opinion, order, or decision of any officer of the Uniteil States which denies, restricts, inpairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic."
It must therefore be accepted as a settled rule of fundamental law, both in France and the United States, that a citizen of either country may lose all his rights of citizenship in the country of his birth, and this without acquiring corresponding rights in another country.
It cannot be doubted that a French tribunal within the territory of France, and having jurisdiction of the person and of the case, would be competent to decide the question of the citizenship of a person born in France who had held slaves in violation of the decrees qnoted. There is no evidence in the case at bar that such decisions have been rendered; but the counsel for the United States claims that this honorable Commission is endowed by the treaty with full power to decide whether a claimant is a French citizen, and that that power with reference to the cases at the bar of the Commission is as ample as could be conferred by the French Government upon any tribunal within the territory of France.
This Commission is at the same time a tribunal of France and a tribunal of the United States; and it is clothed with all the authority that could be conferred by either Government upon any tribunal within its territorial juridiction in all questions arising under the treaty and pending before the Commission. The question of citizenship is one of those questions, and a primary one in its nature. It is claimed by the counsel for the United States that this Commission cannot do otherwise than pass upon the question of citizenship, and in passing upon that question they will examine and apply the laws and decrees of France and the laws of the United States precisely as those laws and decrees would be applied by the French tribunals on the one hand and by the courts of the United States on the other in cases within their jurisdiction respectively. Nor is it necessary for this Commission to inquire whether the loss of citizenship was prescribed by the French Government as a penalty for slaveholding. It is by the decrees a consequence of slaveholding, and inasmuch as by the treaty a person not a citizen of France can have no standing before the Commission, it is the duty of the commissioners to consider the matter, not in the light of an infringement of the law and the infliction of a penalty, but in the light of a duty imposed upon it to ascertain whether the claimant is a French citizen or not.
The provisions of the second article of the treaty quoted by the counsel for France do not, in the judgment of the counsel for the United States, relate to nor in any manner affect the questions pending in the cases at bar. If the reasoning of the counsel for the French Republic be accepted that from this article the inference is plain and unambiguous that if the claimant has “two items of claim, one, say, for cotton and the other for slaves, the last-named is barred," but the first is valid, it does not follow that a person who beld slaves contrary to the decrees is entitled to a standing as a French citizen. It might happen that by the laws of succession there might have been, except for the treaty, a claim for compensation for slaves lost by the original owner, and yet the person making the claim might not himself have held slaves in violation of the decree of 1848, and the decrees in addition thereto. It may also with propriety be said that the declaration in the treaty that no compensation should be made for the loss of slaves in no manner militates against the doctrine of the French decrees that a slaveholder should lose his citizenship in France. Indeed, it may well be assumed that a country which had denationalized its citizens on account of slaveholding would be unwilling either to make compensation for slaves emancipated or to claim compensation for its own citizens for such emancipated slaves at the hands of another government.
If it appear upon the evidence before the Commission that the claimant lost his citizenship in France, whether by naturalization in another country or by absence from France, without the intention of returning, or by taking office in a foreign country, or by holding slaves contrary to the decrees, then it is the duty of the Commission to refuse jurisdiction of the case, inasmuch as it can have no jurisdiction of the claimant if by any act, or by any process, or by the operation of any law, or any decree, his citizenship in France has been either transferreil to another country or been lost hy him in the country of his birth.
The powers and duties of the Commission in the cases at bar are the same in their legal character as in those cases where a French citizen has left France without the intention of returning or has held office in a foreign country.
By the French code the consequence or penalty of leaving France without the intention of returning, or of holding office in a foreign country, is loss of citizenship. The counsel for the United States does not entertain a doubt that the Commission would decline to take jurisdiction when either of these facts was proved.
By the decrees of the French Government the consequence or penalty of slaveholding is loss of citizenship, and the duty and powers of the Commission are as applicable to the case of the slaveholder as to the case of an office-holder or of a permanent resident in a foreign couptry.
It follows, then, upon an application of the decrees and laws of France to the facts established by the testimony in the case at bar, that the claimants, not being citizens of France, have no standing before this Commission, and that they should be hence dismissed.
In reply it was claimed by the special counsel for the claimant
I. That the objection is founded on a mere play upon the double meaning of the word “ citizen," and that the expression “perte de la qualité de citoyen français," used in the law of 1848, means no more than the loss of the right to vote and the right to hold office.
II. That the forfeiture of citizenship denounced upon offenders against this law must be determined by direct judicial proceedings against the offender, and cannot be enforced collaterally.
III. That no one but the French Government can take advantage of the forfeiture, and it is a subject which cannot be gone into at the instance of a foreign government.
IV. That the intent of the high contracting parties, as manifested by historical circumstances, evidently was to include such claimants as the present, even though slave-holders.
In support of these positions it was claimed that the term “ citoyen français,” as used in that law, was not, and never had been, analogous to the term “ American citizen," as used in the American law; that it meant a French voter; that the term to indicate a "citizen” of France in the broad sense of one under the allegiance and protection of France, whether man, woman, or child, was not citoyen français,” but “Fran. çais" simply. It was contended that the analogous term of the two systems of law, French and American, were as follows:
Citations were made from Rivière's " Codes Français et Lois usuelles," as follows:
07. L'exercice des droits civils est indépendant de la qualité de citoyen laquelle ne s'acquiert et ne se conserve que conformément à la loi constitutionelle.
08. Tout Français jouira des droits civils. (Code Civil, liv. 1, tit. 1, ch. 1.)
Art. VIII. Constitution de la Républiqne française (22 frimaire, an VIII). Titre ler-De l'exercice des droits de cité. Art. ler.
2. Tout homme né et résidant en France, qui, âgé de 21 ang accomplis, s'est fait inscrire sur le régistre civique de sor arrondissement communal, et qui a demeuré depuis pendant 1 an, sur le territoire de la République, est citoyen français. (Rivière, Codes Français, &c., vol. 2, p. 73.)
Also from the Dictionary of the Academy, s. v. citoyen :
Citoyen français, se dit de Quinconque jouit in France des droits politiques, tels que le droit de concourir a l'élection des députés, celui de siéger aux assises en qualité de juré, &c.
Extract from Lawrence's Wheaton, in these words, were also cited : According to the constitutional jurists, other than those of England and the United States, the right of voting, or of at least being eligible as an elector, is the test of citizenship. The Dutch publicist, Thorbeck, says, in a discourse delivered at the Hague, entitled, “ Des droits du citoyen d'aujourd'hui,” which was translated into French in 1848 for M. Felix's review: “What constitutes the distinctive character of our epoch is the development of the right of citizenship (droit de cite). In its most extended, as well as in its most restricted sense, it includes a great many properties ( facultés). The right of citizenship is the right of voting in the government of the local, provincial, or national community of which one is a member. In this last sense, the right of citizenship signifies a participation in the right of voting in the general governmont as a member of the state." Rev. Fr. & Etr. tom. v., p. 383. (Lawrence's Wheaton, p. 893.)
In France there has always been a distinction, since naturalization was made a subject of legislation, between the character of a Frenchman, enjoying merely civil rights, and that of a citizen, the attributes of whose character were the possession of political rights. The Code Civil says, liv. i, tit. i, $ 7: “The exercise of civil rights is independent of the quality of citizen, which is only
acquired and preserved in conformity with the constitutional law.” 08. Évery Frenchman shall enjoj civil rights. The Code, 99, regarda as a Frenchman every person born in France of a foreign father, who, within a year after his majority, declares his intention to claim the quality of a Frenchman, by complying with the provisions as to residence, and also, o 10, every child of a Frenchman born in a foreign country. 12. A foreign woman, who marries a Frenchman, fol. lows the condition of the husband. Ø 13. All the civil rights may also be enjoyed, so long as he resides there, by a foreigner admitted by the authority of the sovereign to establish his domicile in France. And Pailliet says, writing under the charter of Louis XVIII, “The rights of a citizen, or, in other words, political or municipal rights, consist in the action which the charte accords to Frenchinen who have the quality of citizens, to concur by their votes in the formation of the Chamber of Deputies, and of being eligible to it. Every Frenchman does not enjoy political and municipal rights. To enjoy them it is not sufficient to be a Frenchman; it is necessary to be, moreover, a citizen." Manuel de Droit Français, p. 9. (Lawrence's Wheaton, pp. 912, 913.)
It was further claimed that the Commission could not receive parol testimony, or the claimant's own admissions or statements under oath, showing that he was not a citizen of France, after his birth in France had been established; that nothing short of or less than record evidence of such naturalization could be admissible before the Commission to show a change or loss of citizenship. It was also claimed that mere parol evidence, or the mere admissions or statements under oath of a claimant, could not be entertained by the Commission to either confer or to confiscate citizenship in any case whatsoever. It was claimed, further, that the decree of France must be treated in the nature of a penal code ; that a judicial finding must follow under every penalty of law before the citizen could be declared to fall under the forfeiture of the penalty, and that no question could be raised by parol testimony against a party where the liability to penalty in any case had not been judicially ascertained. It was said that France had not yet estab. lished any method of ascertaining what portion of its citizens resident in the United States had fallen under the decree, or what particular political rights they had lost. And it was claimed that the Commission could not go further into these premises than the French Government had gone; that the Cominission could find loss of citizenship only after the proper French authorities, in a direct proceeding, had declared the same; that fact to be shown only by the record. It was claimed that it was for the French Government to enforce its penal enactments, and when that government did not choose to inflict penalty, the violation of the law was not the business of any foreign Government. Slaveholdjpg was made a criminal offense by the decree, and no other nation than France could enforce the criminal law.
In reply the counsel for the United States said that he made no claim that the commission had power to denationalize Frenchmen, but that, under the treaty, it had power to inquire whether a citizen of France had been denationalized by the act of the Government of France, or whether he had denationalized himself by any act of his own. It was contended that in the cases at bar the question was whether the claimants by their own acts in holding slaves in violation of the decrees and laws of France had denationalized themselves; that in every case the first question was whether the Commission had jurisdiction over the per. son who appeared in the attitude of a claimant. It was claimed further that for more than thirty years a decree had been in operation, first under the Republic, then under the Empire, and again under the Republic, by which French-born subjects holding slaves under certain circumstances were declared to be no longer French citizens; that by opera. tion of law, when the treaty was ratified, all those persons were excluded from citizenship in France, and their claim to be considered French citizens was no better than it would have been if a formal decree had been made in a competent tribunal denationalizing them; and that it was therefore to be assumed that the French Government, when the treaty was ratified, had in mind the exemption from the operation of the treaty of all such persons.
The Commission, by judgment of two of its members, Baron de Arinos and M. de Geofroy, asserted jurisdiction in all these cases, and made awards in each. Mr. Commissioner Aldis dissented, and in the case of Pierre Nougué v. The United States, No. 323, filed an opinion, which is printed in the Appendix and marked "Exhibit G."
FRANÇOIS E. PARRENIN v. THE UNITED STATES, No. 62. The claimant in this case said in his testimony (p. 17): “When I came to this country I came with the intention of remaining permanently."
Upon that statement the counsel for the United States quoted article 17 of the Code of France, which enumerates the acts by which a French citizen may lose the quality of citizenship, and especially this: "30. Enfin par tout établissement fait en pays étranger, sans esprit de retour.” It was admitted by the counsel for the United States that there was no evidence in the case showing, or tending to show, that any tribunal in France had passed npon the fact of the citizenship of Parrenin in that country, and he claimed that it was for the Commission to decide that question. Contending that the Commission was duly authorized to decide the question of citizenship in the pending case, he submitted that the treaty-making power was one of the highest powers ever exercised by independent, sovereign governments, and that by and within the jurisdiction granted to the Commission by the treaty of January 15, 1880, it had all the legal qualities of investigation and deliberation and final judgment that could be granted to any municipal tribunal either in the United States or in France. And, further, that inasmuch as there was noevidence that any French tribunal had passed upon the question of the citizenship of Parrenin, and as the decision of that question was vital in the pending case, it was necessary for the Commission to decide whether by the laws of France and by the laws of the United States, or by the laws of either country, in the absence of statutes in the other affecting the question, the memorialist was a citizen of France. He claimed, further, that it was not necessary for the Commission to inquire whether Parrenin had gained citizenship in another country. That as a matter of law or as a matter of fact, it was not true that every person is a citizen or subject of some country or government. The doctrine of expatriation being admitted in the French Code, and declared by the laws of the United States, it was necessary for the Commission to inquire whether the memorialist had, by his own acts, such as accepting office under a foreign Government, buying, bolding, or selling slaves, or residing abroad without the intention of returning to France, deprived himself of citizenship in that country.
In reply, it was claimed by the special counsel for the memorialist that inasmuch as the claimant was a native-born French citizen, and had not been naturalized in or made a citizen of any other country, it followed as a legal conclusion that he remained a citizen of France. In support of this position he asserted it as a “fact universally declared
and admitted in the writings of publicists that every human being must have a nationality, a society, or state, or government to which he belongs.” “All authorities," it was contended by the special counsel, "on public law declare that every person must have a country—a nationality; and, further, that the country or government of origin remains to each person, and stamps him with its character and citizenship, until by some well-defined public act he renounces that nationalits and takes upon himself a new citizenship.” In support of this position the authority of Mr. Webster was cited; also of Attorneys. General Cushing, Black, and Williams. The opinion of the Supreme Court in the case of “ The Charming Betsey (2 Cranch, pp. 64–119) and in the case of Almanstien v. Lynham (U. S. Rep., Vol. 100, p. 484) were referred to. Decisions of courts of France were also cited to the effect that it is to be presumed that all Frenchmen absent from the country intend to return to France, and consequently, that nothing but the most direct and undoubted evidence would do away with such presumption.
The Commission decided unanimously to allow the sum of $300 to the claimant. The commissioner for the United States placed his name to a note, in which he says:
In siguing this decision I waive the question whether the claimant had established himself in the United States without intent to return to France, so that if in any case hereafter that question should arise I must reserve my freedom of action upon the qnestion.
In the case of Elise Lebret v. The Uuited States, No. 173, the commissioner for France, Mr. de Geofroy, assented to the position of the majority of the Commission that she was not a citizen of France, but upon the ground that her long residence in the United States justified the legal conclusion on his part that she was absent from France without an intention to return.
JOSEPH CAMY v. THE UNITED STATES, No. 656.
It was averred in the memorial in this case that Camy was a citizen of France, and that averment was sustained by the proofs. He also set forth in his memorial that “on the 12th day of June, 1863, he sold and assigned his claim or the proceeds of the said cotton to the firm of Duthil & Faisans, of New Orleans." He stated also that he was advised that the assignment was null and void.
Upon this statement in the memorial the counsel for the United States interposed a demurrer, and alleged that the claimant had no title in the claim presented, he having assigned all his right and interest therein to Duthil & Fasians in June, 1863.
The claim was for 41 bales of cotton, valued at $16,500. The as. signees, Duthil & Faisans, filed a claim for the same cotton.
It was contended by the counsel for the claimant that prior to the treaty the claim was not a right, or, if a right, it did not belong to the class of assignable rights. It was alleged that “the practical test of a right is the existence of a remedy to enforce it. A law cannot be said to give a right when it does not give an appropriate remedy." The cases of Ogden v. Saunders (12 Wheaton, 259) and Gunn v. Barry (15 Wallace, 610) were cited in support of this position. It was further contended that the act of the Government was a “tort,” and that the right, if there had been one, would have been a right of action for damages for