Immediately upon receipt of this reply I addressed a note to Mr. Germain,
United States consul at Zurich, to ascertain the present status of Mr.
Schneider’s case, and have just received his reply, in which he informs
me that Mr. Schneider is still absent from Switzerland awaiting his
discharge from Swiss citizenship, which has not yet been granted.
I am not informed whether the Canton has refused to grant his discharge
or whether the matter still remains undetermined. When he returns to
Switzerland he is liable to arrest for refusal to obey the orders of the
military authorities.
As the Swiss Government has finally and unequivocally refused to release
him from military service, I await the further instructions of the
Department in regard to his case.
[Inclosure in No.
88.—Translation.]
The Swiss Federal
Council to Mr. Peak.
Sir: In your note of March 24, relative to
the military service of Mr. Frederic Arnold Schneider, of Pfaffikon,
Canton of Zurich, your excellency 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.
You observe that, Mr. Schneider being born in the United States of a
father a naturalized American, is beyond dispute a citizen of the
United States, and, therefore, entitled to the benefits of Article
II of the treaty, which exempts from personal military service the
citizens of one of the two countries sojourning or residing in the
other. Local or municipal laws, you add, by virtue of which Mr.
Schneider would be held to possess simultaneously the quality of
Swiss citizen, could not prevail, according to your point of view,
against the provisions of the said treaty,
[Page 565]
which is applicable to all American citizens,
without excepting those of whom the parents are of Swiss origin.
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.
It would be superfluous to repeat here what we have already stated
many times in the correspondence exchanged on the subject of a
projected treaty having in view precisely the regulation of this
matter. Your excellency, in fact, 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 domicile, 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
contracted by solemn 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 comformably 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
[Page 566]
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. In order for the treaty to derogate internal
legislation and the constitution of Switzerland, it would have been
necessary to have a stipulation expressly including citizens of
Swiss origin naturalized in America, just as special treaties have
been necessary to settle like difficulties between the United States
of America and other Governments. Apropos of this can be mentioned
the conventions concluded by the United States of America with the
Confederated North German States February 22, 1868, with Austria
September 20, 1870, and with Belgium November 16, 1868.
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 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.
Receive, etc., etc., in the name of the Swiss Federal Council.
- Deucher,
The President of the
Confederation.
- Riugier,
The Chancellor of the
Confederation.
