No. 1127.

To _______ _______,
_______ _______:

Sir: In reply to your letter of _____ ____, relating to the return of naturalized citizens of the United States to their native country, I send you the following circular, which contains all the information the Department is competent to give in regard to the subject of your inquiry.

I am, sir, your obedient servant,

_____ ______.

[Circular.]

Citizenship and naturalization.

Treaties regulating the rights of persons who have emigrated from the territory of one of the contracting parties and have been naturalized in that of the other party have been concluded between the United States and the following powers: Austria-Hungary, Baden, Bavaria, Belgium, Denmark, Ecuador, Great Britain, Hesse Darmstadt, the North German Union, Sweden and Norway, and Wurtemburg.

The treaties with Austria-Hungary, Baden, Bavaria, Hesse Darmstadt, the North German Union, and Wurtemberg provide that citizens or subjects of these powers who have become naturalized citizens of the United States, and have resided therein “uninterruptedly” for five years, shall be held to be citizens of the United States, and shall be treated as such. The treaty with Sweden and Norway provides for similar treatment of subjects who have resided in the United States “for a continuous period of at least five years, and during such residence have become naturalized citizens of the United States.”

The treaties with Belgium, Denmark, Ecuador, and Great Britain recognize citizenship whenever acquired under our laws.

The exceptions to the requisition of five years’ residence under our statutes are:

1. Soldiers who have been honorably discharged from the armies of the United States. Such persons, being of the age of twenty-one years and upwards, may be naturalized without any previous declaration of intention to become citizens, and without being required to prove more than one year’s residence in the United States previous to their application (see section 21 of act of Congress of July 17, 1862, 12 Statutes at Large, p. 597). An erroneous notion has to some extent prevailed that the mere facts of service and discharge are equivalent to naturalization, whereas they are only part of the evidence on which naturalization may be granted.

2. Seamen who have declared their intention to become citizens, and who, subsequently to such declaration, have served three years on board of a merchant vessel of the United States, may be admitted to citizenship.

“And every seaman * * * shall, after his declaration of intention to become a citizen, * * * and after he shall have served such three years, be deemed a citizen of the United States for the purpose of manning and serving on board any merchant vessel of the United States * * *; but such seaman shall, for all purposes of protection as an American citizen, be deemed such after the filing of his declaration of intention.” * * * (Act of June 7, 1872; Rev. Stats., sec. 2174.)

3. The children of persons duly naturalized, being under twenty-one years of age at the time of their parents being so naturalized, are, if dwelling within the United States, considered as citizens. (Act of April 14, 1802; Rev. Stats., sec. 2172.)

[Page 1649]

4. Persons born out of the limits and jurisdiction of the United States whose fathers at the time of such birth were citizens of the United States; and

5. Women married to citizens of the United States. (Act of February 10, 1855; Rev. Stats., sec. 1994.)

It has been decided (7 Wallace, 496) that the state of marriage confers citizenship on the wife, whether the citizenship of the husband existed at the time of the marriage or was subsequently acquired. It has also been provided (Rev. Stats., sec. 2168) that when any alien who has duly declared his intention to become a citizen dies before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and -shall be entitled to all rights and privileges as such on taking the oaths prescribed by law.

In the explanatory protocols annexed to some of the treaties it is stated that the words “resided uninterruptedly” are to be understood, not of a continued bodily presence, but in the sense of general residence; and therefore a transient absence, subordinated to such residence, by no means interrupts the period of “five years” contemplated by such treaties. It is presumed that this construction will be accepted by the other powers which have not in terms announced their assent thereto.

The treaties referred to generally contain a provision that “the declaration of an intention to become a citizen of one or the other country has not for either party the effect of naturalization.” But, aside from the treaties, the issuing of passports to any other persons than citizens of the United States was, and still remains, prohibited by act of Congress.

The treaties in some cases provide that if a subject of the other contracting party, who has been naturalized in the United States, renews his residence in the country of his original allegiance, without the intent to return to the United States, he shall be held to have renounced his naturalization in the United States. It has also been repeatedly held by the Department of State that residence in a foreign land, entered on and continued in as a permanence, without the intention of returning being shown, precludes one who may be nominally a citizen of the United States from obtaining the interposition of the Government of the United States in his behalf in a claim against a foreign state. It has also been held that an avoidance in such cases of taxes or other obligations due the United States is a fact from which an abandonment of allegiance may be inferred. The intention not to return is assumed in some of the treaties to be established when the person naturalized in the one country resides in the other country more than two years, but this presumption may be rebutted.

The pertinent provisions of the treaties in regard to renunciation of naturalization are given in Appendix A.

Several of the treaties further provide that a naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an action punishable by the laws of his original country and committed before his emigration, saving, always, the limitation established by the laws of his original country; some of them, for, example, Baden, Bavaria, and Wurtemberg, add “or any other remission of liability to punishment.”

The ministers of justice and the interior of the North German Union have issued circular instructions to the effect that the punishable action committed by the unauthorized emigration of a subject shall not be made the ground for a penal prosecution upon the return of such person to his former country after an absence of not less than five years and his naturalization in the United States. A similar intention is declared in the explanatory protocol accompanying the treaty with Bavaria, and it may reasonably be expected that the other powers with whom we have treaties on this subject will construe them with the same liberality.

Inquiries are constantly received at the Department from naturalized citizens of the United States for advice as to whether they would be likely to encounter molestation should they return to their native country. Following a uniform and necessary rule, the Department declines to give opinions on the merits of hypothetical cases so presented, involving questions of foreign laws and policies, the interpretation of which is not within its province.

Liability to prosecutions for military or other offenses committed prior to emigration is not, as a rule, affected by the naturalization of the offender. Such provisions as are found in the treaties on this subject are given in Appendix B. The various offenses and penalties therefor, and the limitations upon prosecutions, being matters of foreign municipal law, are necessarily outside the advisory province of this Department.

In respect to those countries with which we have no naturalization treaties, it is necessary to speak with great reserve. It would not be possible to give an interpretation to foreign laws, even if their entire text were in our possession. The construction of those laws belongs to the judicial tribunals of the countries in which they are promulgated. It must be understood, therefore, that what follows is collected from authors of good repute and other unofficial sources, and is given only as such, but [Page 1650] without affirming its authority. With this qualification the following statements may be made:

France.—By the laws of France a French citizen can not expatriate himself and change his allegiance without obtaining the consent of his Government. He may lose his national character, however, by doing several acts, among which is the unauthorized seeking or accepting of foreign citizenship. By such a transfer of allegiance he loses his claim to French citizenship, and subjects himself to certain disabilities. Unlike any other foreign citizen, for instance, he can not take up his residence in France without the authorization of the French Government, and if he attempts to do so he may be expelled.

No foreigner can serve in the French army. A Frenchman, therefore, who has been naturalized in the United States can not be held to perform military service in France. But this exemption can be secured only by administrative or judicial act. The son of every Frenchman is registered at the place of his birth, if born in France, or at the place of his family’s residence, if born abroad, as liable to military service. This registration forms in each commune a recruiting list, and when the time comes each person on the list is notified to present himself at a designated place. If he fails to report when called upon, he is charged with insubmission (délit d’ insoumission), and his name and description are given to the police authorities, with the order to arrest him when found. If he has been naturalized abroad, he is still liable to arrest immediately on his return to France. If he pleads that he has renounced his original nationality, he is required to go before a civil tribunal, and show by properly authenticated papers that his naturalization was in conformity with the law of the country in which it was effected. If the tribunal is satisfied on this point, it adjudges him to have lost “the quality of a Frenchman,” and the defendant then goes back to the council of war. Here his name is definitely erased from the military rolls. But he is nevertheless tried for the offense of insubmission committed before he could legally have thrown off his original allegiance. If three years have elapsed since the day he was fully naturalized, he is discharged. If such a period has not elapsed he falls under the operation of the law punishing insubmission, and is sentenced to a fine or to a few weeks’ or months’ imprisonment, perhaps to both, according to the circumstances of the Case. Whether punished or not, he is turned over, after his release, to the civil authorities. If he is supposed to be a bona fide citizen, he is not interfered with; but if suspected of having acquired his foreign citizenship to escape military service, he is at once ordered to leave France (see dispatch of Mr. Vignaud to Mr. Frelinghuysen, No. 665, November 13, 1884). In any event he may be subjected to the costs of the proceedings.

Spain and Greece treat nationality as lost by naturalization in a foreign country, or by entering without license into its civil or military service. In the ultramarine provinces of Spain no one considered as a foreigner by Spanish law is subject to military service. Foreigners are also exempt there from personal service in the municipal guards. But domiciled residents who have their own houses are subject to charges for furnishing lodging and transportation.

Italy still holds to the indissolubility of natural allegiance, unless the consent of the sovereign be obtained to the renunciation. (For. Rel. U. S., 1878, pp. 458, 459, 469.) Hence naturalization abroad, without the King’s permission, does not exempt from conscription for military service.

In Switzerland it has been held that naturalization in the United States, when preceded by an accepted renunciation of Swiss allegiance, dissolves such allegiance. (For. Rel. U. S., 1879, p. 973.)

A Russian subject can not emigrate or become naturalized in a foreign country without the permission of the Emperor. If he does so he commits an offense for which he may be subjected to a fine or exile. The application of this penalty is his only guaranty against his being compelled to stand the chances of the lot for the annual supply of recruits. By a law of January 1, 1874, Russian subjects are forbidden to throw off their allegiance until they have performed their military service. This law applies to all subjects above the age of fifteen.

A subject of the Ottoman Empire can not divest himself of that character without the authority of the Imperial Government. If, without such authority, he accepts a foreign naturalization, it is regarded as of no effect, both in reference to himself and to his children. Every person who obtains naturalization abroad, or enters a foreign military service, without the permission of the Sultan, may be declared to have forfeited his Ottoman character, and in that case is altogether interdicted from returning to the Ottoman Empire.

Directions for procuring passports may be obtained by addressing the Department of State, Passport Bureau, Washington, D. C.

[Page 1651]

Appendix A.

austria-hungary.

Art. IV. The emigrant from the one state who, according to article 1, is to be held as a citizen of the other state, shall not, on his return to his original country, be constrained to resume his former citizenship; yet if he shall of his own accord re-acquire it and renounce the citizenship obtained by naturalization, such a renunciation is allowable, and no fixed period of residence shall be required for the recognition of his recovery of citizenship in his original country.

baden.

Art. IV. The emigrant from the one state who, according to the first article, is to be held as a citizen of the other state, shall not, on his return to his original country, be constrained to resume his former citizenship; yet if he shall of his own accord reacquire it and renounce the citizenship obtained by naturalization, such a renunciation is allowed, and no fixed period of residence shall be required for the recognition of his recovery of citizenship in his original country.

bavaria.

Art. IV. If a Bavarian, naturalized in America, renews his residence in Bavaria, without the intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally, if an American, naturalized in Bavaria, renews his residence in the United States, without the intent to return to Bavaria, he shall be held to have renounced his naturalization in Bavaria. The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.

Protocol—Relating to article 4 of the treaty.—(1) It is agreed on both sides that the regulative powers granted to the two Governments respectively by their laws for protection against resident aliens, whose residence endangers peace and order in the land, are not affected by the treaty. In particular the regulation contained in the second clause of the tenth article of the Bavarian military law of the 30th of January 1868, according to which Bavarians emigrating from Bavaria before the fulfillment of their military duty can not be admitted to a permanent residence in the land till they shall have become thirty-two years old, is not affected by the treaty.’ But yet it is established and agreed that by the expression “permanent residence,” used in the said article, the above-described emigrants are not forbidden to undertake a journey for Bavaria for a less period of time and for definite purposes, and the Royal Bavarian Government moreover cheerfully declares itself ready, in all cases in which the emigration has plainly taken place in good faith, to allow a mild rule in practice to be adopted.

(2) It is hereby agreed that when a Bavarian naturalized in America, and reciprocally an American naturalized in Bavaria, takes up his abode once more in his original country without the intention of return to the country of his adoption, he does by no means thereby recover his former citizenship; on the contrary, in so far as it relates to Bavaria, it depends on His Majesty the King whether he will or will not in that event grant the Bavarian citizenship anew.

The article fourth shall accordingly have only this meaning, that the adopted country of the emigrant can hot prevent him from acquiring once more his former citizenship but not that the state to which the emigrant originally belonged is bound to restore him at once to his original relation. On the contrary, the citizen naturalized abroad must first apply to be received back into his original country in the manner prescribed by its laws and regulations, and must acquire citizenship anew, exactly like any other alien. But yet it is left to his own free choice whether he will adopt that course or will preserve the citizenship of the country of his adoption. The two plenipotentiaries give each other mutually the assurance that their respective Governments, in ratifying this treaty, will also regard as approved and will maintain the agreements and explanations contained in the present protocol without any further formal ratification of the same.

belgium.

Art. IV. Citizens of the United States naturalized in Belgium shall be considered by Belgium as citizens of the United States when they shall have recovered their character as citizens of the United States according to the laws of the United States. Reciprocally, Belgians naturalized in the United States shall be considered as Belgians by the United States when they shall have recovered their character as Belgians according to the laws of Belgium.

[Page 1652]

denmark.

  • Art. II. If any such citizen of the United States, as aforesaid, naturalized within the Kingdom of Denmark as a Danish subject, should renew his residence in the United States, the United States Government may, on his application, and on such conditions as that Government may see fit to impose, re-admit him to the character and privileges of a citizen of the United States, and the Danish Government shall not, in that case, claim him as a Danish subject on account of his former naturalization. In like manner, if any such Danish subject, as aforesaid, naturalized within the United States as a citizen thereof, should renew his residence within the Kingdom of Denmark, His Majesty’s Government may, on his application, and on such conditions as that Government may think fit to impose, re-admit him to the character and privileges of a Danish subject, and the United States Government shall not, in that case, claim him as a citizen of the United States on account of his former naturalization.
  • Art. III. If, however, a citizen of the United States, naturalized in Denmark, shall renew his residence in the former country without the intent to return to that in which he was naturalized, he shall be held to have renounced his naturalization. In like manner, if a Dane, naturalized in the United States, shall renew his residence in Denmark without the intent to return to the former country, he shall be held to have renounced his naturalization in the United States. The intent not to return may be held to exist when a person naturalized in the one country shall reside more than two years in the other country.

ecuador.

  • Art. II. If a naturalized citizen of either country shall renew his residence in that where he was born, without an intention of returning to that where he was naturalized, he shall be held to have re-assumed the obligations of his original citizenship, and to have renounced that which he had obtained by naturalization.
  • Art. III. A residence of more than two years in the native country of a naturalized citizen shall be construed as an intention on his part to stay there, without returning to that where he was naturalized. This presumption, however, may be rebutted by evidence to the contrary.

great britain.

Art. II. Such citizens of the United States as aforesaid who have become and are naturalized within the dominions of Her Britannic Majesty as British subjects, shall be at liberty to renounce their naturalization and to resume their nationality as citizens of the United States, provided that such renunciation be publicly declared within two years after the exchange of the ratifications of the present convention. Such British subjects as aforesaid who have become and are naturalized as citizens within the United States shall be at liberty to renounce their naturalization and to resume their British nationality, provided that such renunciation be publicly declared within two years after the 12th day of May, 1870. The manner in which this renunciation may be made and publicly declared shall be agreed upon by the Governments of the respective countries.

Art. III. If any such citizen of the United States as aforesaid, naturalized within the dominions of Her Britannic Majesty, should renew his residence in the United States, the United States Government may, on his own application and on such conditions as that Government may think fit to impose, re-admit him to the character and privileges of a citizen of the United States, and Great Britain shall not in that case claim him as a British subject on account of his former naturalization. In the same manner, if any such British subject as aforesaid naturalized in the United States should renew his residence within the dominions of Her Britannic Majesty, Her Majesty’s Government may, on his own application, and on such conditions as that Government may think fit to impose, re-admit him to the character and privileges of a British subject, and the United States shall not in that case claim him as a citizen of the United States on account of his former naturalization.

hesse-darmstadt.

Art. IV. If a Hessian, naturalized in America, but originally a citizen of the parts of the Grand Duchy not included in the North German Confederation, renews his residence in those parts without the intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally, if an American, naturalized in the Grand Duchy of Hesse (within the above-described parts), renews his residence in the United States without the intent to return to Hesse, he shall be held to have renounced his naturalization in the Grand Duchy. The intent not to return may be held to exist when the person naturalized in one country resides more than two years in the other country.

[Page 1653]

north german union.

Art. IV. If a German naturalized in America renews his residence in North Germany without the intend to return to America, he shall he held to have renounced his naturalization in the United States. Reciprocally: If an American naturalized in North Germany renews his residence in the United States without the intent to return to North Germany, he shall be held to have renounced his naturalization in North Germany. The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.

sweden and norway.

Art. III. If a citizen of the one party, who has become a recognized citizen of the other party, takes up his abode once more in his original country and applies to be restored to his former citizenship, the government of the last-named country is authorized to receive him again as a citizen, on such conditions as the said government may think proper.

Protocol.—III. Relating to the third article of the convention. It is further agreed that if a Swede or a Norwegian, who has become a naturalized citizen of the United States, renews his residence in Sweden or Norway without the intent to return to America, he shall be held by the Government of the United States to have renounced his American citizenship. The intent not to return to America may be held to exist when the person so naturalized resides more than two years in Sweden or Norway.

würtemberg.

Art. IV. If a Würtemberger, naturalized in America, renews his residence in Würtemberg without the intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally: If an American naturalized in Wurtemberg renews his residence in the United States without the intent to return to Wurtemberg, he shall be held to have renounced his naturalization in Wurtemberg. The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.

Appendix B.

austria-hungary.

Art. II. A naturalized citizen of the one party, on return to the territory of the other party, remains liable to trial and punishment for an action punishable by the laws of his original country committed before his emigration, saving always the limitation established by the laws of his original country and any other remissions of liability to punishment. In particular, a former citizen of the Austro-Hungarian monarchy, who under the first article is to be held as an American citizen, is liable to trial and punishment according to the laws of Austro-Hungary for non-fulfillment of military duty—

(1)
If he has emigrated, after having been drafted at the time of conscription, and thus having become enrolled as a recruit for service in the standing army.
(2)
If he has emigrated whilst he stood in the service under the flag, or had a leave of absence only for a limited time.
(3)
If, having a leave of absence for an unlimited time or belonging to the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out.

On the other hand, a former citizen of the Austro-Hungarian monarchy naturalized in the United States, who by or after his emigration has transgressed the legal provisions on military duty by any acts or omissions other than those above enumerated in the clauses numbered 1, 2, and 3, can, on his return to his original country, neither be held subsequently to military service nor remain liable to trial and punishment for the non-fulfillment of his military duty.

baden.

Art. II. A naturalized citizen of the one party, on return to the territory of the other party, remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration, saving always the limitation established by the laws of his original country, or any other remission of liability to punishment. In particular, a former Badener who, under the first article, is to be held as an American citizen, is liable to trial and punishment according to the laws of Baden for non-fulfillment of military duty— [Page 1654]

(1)
If tie has emigrated after he, on occasion of the draft from those owing military duty, has been enrolled as a recruit for service in the standing army.
(2)
If he has emigrated whilst he stood in service under the flag, or had a leave of absence only for a limited time.
(3)
If, having a leave of absence for an unlimited time, or belonging in the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out.

On the other hand, a former Badener, naturalized in the United States, who, by or after his emigration, has transgressed or shall transgress the legal provisions on military duty by any acts or omissions other than those above enumerated in the clauses numbered 1 to 3, can, on his return to his original country, neither be held subsequently to military service nor remain liable to trial.and punishment for the non-fulfilment of his military duty. Moreover, the attachment on the property of an emigrant for non-fulfillment of his military duty, except in the cases designated in the clauses numbered 1 to 3, shall be removed so soon as he shall prove his naturalization in the United States according to the first article.

bavaria.

Art. II. A naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration, saving always the limitation established by the laws of his original country, or any other remission of liability to punishment.

Protocol.—Relating to the second article of the treaty.—(1) It is expressly agreed that a person who, under the first article, is to be held as an adopted citizen of the other state, on his return to his original country, can not be made punishable for the act of emigration itself, not even though at a later day he sholud have lost his adopted citizenship.

belgium.

Art. II. Citizens of either contracting party, in case of their return to their original country, can be prosecuted there for crimes or misdemeanors committed before naturalization, saving to them such limitations as are established by the laws of their original country.

Art. III. Naturalized citizens of either contracting party who shall have resided five years in the country which has naturalized them, cannot be held to the obligation of military service in their original country, or to incidental obligation resulting therefrom, in the event of their return to it, except in cases of desertion from organized and embodied military or naval service, or those that may be assimilated thereto by the laws of that country.

ecuador.

Art. IV. Naturalized citizens of either country, on returning to that where they were born, shall be subject to trial and punishment according to the laws, for offenses committed before their emigration, saving always the limitations established by law.

hesse-darmstadt.

Art. II. A naturalized citizen of the one party on return to the territory of the other party, remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration, saving always the limitation established by the laws of his original country.

north german union.

Art. II. A naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration, saving always the limitation established by the laws of his original country.

sweden and norway.

Art. II. A recognized citizen of the one party, on returning to the territory of the orther, remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration, but not for the emigration [Page 1655] itself, saving always the limitation established by the laws of his original country, and any other remission of liability to punishment.

Protocol.—Relating to the second article of the convention.—If a former Swede or Norwegian, who under the first article is to be held as an adopted citizen of the United States of America, has emigrated after he has attained the age when he becomes liable to military service, and returns again to his original country, it is agreed that he remains liable to trial and punishment for an action punishable by the laws of his original country and committed before his emigration, but not for the act of emigration itself, unless thereby has been committed any punishable action against Sweden or Norway, or against a Swedish or Norwegian citizen, such as non-fulfillment of military service, or desertion from the military force or from a ship, saving always the limitation established by the laws of the original country, and any other remission of liability to punishment; and that he can be held to fulfill, according to the laws, his military service, or the remaining part thereof.

wurtemberg.

Art. II. A naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an action punishable by the laws of his original country, and committed before his emigration, saving always the limitation established by the laws of his original country, or any other remission of liability to punishment.