Mr. Broadhead to
Mr. Gresham.
Legation of the United States,
Legation of the United States, August
20, 1894. (Received August 30.)
No. 54.]Sir: I have the honor to submit the following
matter for the information of the State Department, and for such
instruction as may be thought proper by you to give me in the case.
Fred Tschudy, a native of the Republic of Switzerland, emigrated to the
United States in June, 1888, when he was a minor, and upon his arriving
at age he was naturalized by the court of common pleas at Camden, N. J.,
on the 17th day of October, 1893, and on the 25th of October, 1893, he
left the United States on a visit to Europe, arriving at Antwerp on the
8th of November, 1893. Thence he proceeded to Winterthur, in the canton
of Zurich, where his father and mother resided.
On the 9th of June, 1894, upon his application I gave him a passport as a
naturalized citizen of the United States, on his presenting his
certificate of naturalization. He was then temporarily residing at
Winterthur.
Sometime during the month of July or early in this month he was, by the
authorities of the canton of Zurich, ordered to the recruiting service
for the 23d of August at Winterthur.
Mr. Tschudy complained to me about the matter, told me that he showed the
officer his passport and his certificate of naturalization, but that no
regard was paid to them; he has paid the military tax for the time he
was absent in the United States after he became of age, the receipts for
which he showed me. Thereupon I addressed a note to the President of the
Confederation, who is also chief of the military department, of the date
of the 6th of August, in regard to the case of Mr. Tschudy, asking that
the matter be inquired into, and that he be relieved from the
performance of military service, and stating the fact that he was a
naturalized citizen of the United States, and that I had given him a
passport as such. A copy of my note to the President is herewith
inclosed (No. 1).
On the 15th of August I received a note of the date of August 14, from
Mr. Lachenal, the chief of the department of foreign affairs of the
Confederation, a copy of which is herewith inclosed (No. 2), in which,
answering my note addressed to the President, he says that Mr. Tschudy
can not be excused from presenting himself on the 23d of next August to
the council of revision of Winterthur, for the reason that he is still a
Swiss citizen and can not, therefore, invoke in Switzerland the
protection of the State of which he has also acquired the right of
citizenship.
I replied to Mr. Lachenal by note of the 17th of August, a copy of which
is herewith inclosed (No. 3), in which I stated what I conceived to be
the uniform and inflexible doctrine of the United States on the subject
of the right of expatriation, and the construction which should be given
to the existing treaty between the two nations.
Mr. Tschudy informs me that he has offered to pay the military tax for
the year 1894, but that the authorities here refused to receive it. The
important matter, however, is that his certificate of naturalization and
his passport have been repudiated as of no effect here, and as giving
him no right of protection by the United States Government.
In my reply to Mr. Lachenal’s note I have been governed by the provisions
[Page 684]
of sections 1999 and 2000
of our Revised Code, in the former of which our Government asserts the
right of expatriation, which has always been maintained from the
foundation of our Republic, and in the latter declares that all
naturalized citizens of the United States shall receive from this
Government the same protection of person and property which is accorded
to native-born citizens.
I refer also to the letter of Mr. Evarts to Mr. Fish, of the date of
November 12, 1879,1 where a similar question arose in regard to the
removal of property by a naturalized citizen of the United States who
was a native of Switzerland, and also to the letters of Mr.
Freling-huysen to Mr. Cramer, of the dates of December 19, 1882, and of
July 28, 1883, and also to the letter of Mr. Bayard to Mr. Cox, of the
date of November 28, 1885, in which last case the Sublime Porte set up
the same claim to the perpetual allegiance of its subjects that is now
maintained by the Republic of Switzerland. I shall keep the Department
informed as to what final action is taken by the Swiss Government in Mr.
Tschudy’s case, and in the mean time I respectfully ask for instructions
on the subject.
Most respectfully, etc.,
[Inclosure 1 in No. 54.]
Mr. Broadhead
to Mr. Frey.
Legation of the United States,
Berne, August 6, 1894.
Sir: I have the honor to inform you that
Fred. Tschudy, a native of Switzerland but a naturalized citizen of
the United States and now temporarily residing at Winterthur, in the
Canton of Zurich, states to me that he has been ordered to the
recruiting service on the 23d of this month.
Mr. Tschudy emigrated to the United States in June, 1888, when he was
a minor, and upon his arriving of age he was naturalized by the
court of common pleas at Camden, N. J., on the 17th day of October,
3893, and on the 25th day of October, 1893, he left the United
States, and arrived at Antwerp on the 8th day of November, 1893. On
the 6th day of June, 1894, he was given a passport by this legation
as a naturalized citizen of the United States, and was at the time
temporarily residing at Winterthur. He tells me that he has paid the
military tax provided for by the treaty between the two nations, but
that the authorities of the canton of Zurich still require of him
military service. I submit most respectfully that this requirement
can not be had of Mr. Tschudy, inasmuch as he has been duly
naturalized under the laws of the United States; and I ask that the
matter maybe inquired into, and that Mr. Tschudy be relieved from
the performance of military service.
With high regard, I am, etc.,
[Page 685]
[Inclosure 2 in No.
54.—Translation.]
Mr. Lachenal to
Mr. Broadhead.
Federal Department of Foreign Affairs,
Political Division,
Federal Department of Foreign
Affairs,
Political
Division, August 14,
1894.
No. 4105.]Mr. Minister: In response to your note of
the 6th of this month addressed to the President of the
Confederation, I have the honor of informing you that Mr. Fred.
Tschudy can not be excused from presenting himself the 23d of next
August to the council of revision at Winterthur, on account of his
still possessing Swiss nationality. In this capacity he can not,
therefore, invoke in Switzerland the protection of the State of
which he has also acquired the right of citizenship.
Please accept, etc.,
Lachenal,
Chief of the Federal Department of Foreign
Affairs.
[Inclosure 3 in No. 54.]
Mr. Broadhead
to Mr. Lachenal.
Sir: Your communication of the 14th instant
in regard to the case of Mr. Fred. Tschudy has been received.
In answer to my letter of the 6th instant to President Frey you say
that Mr. Tschudy can not be relieved from presenting himself on the
23d of August before the board of revision at Winterthur on account
of his still possessing Swiss nationality; and on that account he
can not invoke in Switzerland the protection of the state of which
he has elsewhere acquired the right of citizenship.
While not undertaking to dispute the general proposition of the right
of the Swiss Government to deny to its citizens the liberty of
casting off their national character without its consent, I take
this occasion to say, with all due respect and in all kindness, that
the treaty stipulations existing between the two nations are, in my
judgment, inconsistent with the course proposed to be pursued in the
case of Mr. Tschudy.
The United States has always maintained the right of expatriation and
denied the doctrine of perpetual allegiance; we have always denied
that a full-grown man is, like the trees of the forest, rooted to
the soil, without thought or feeling or the ambition to better his
condition; or that he is not at liberty to make an effort to that
end in other lands where his labor will be more profitable or his
intellectual energies will reap a better reward and insure a higher
development.
Whether, in the opinion of others, this political philosophy be true
or false, the fact that the United States maintained it from the
very birth of our Republic, and still adheres to it, was well known
to the other civilized nations at the time when our treaty with
Switzerland was ratified; and it was equally well known that the
United States Government claimed and exercised the right of
naturalizing aliens and of exacting from them, as a condition of
naturalization, an oath that they renounce forever all allegiance to
every foreign prince, potentate, or power, without any condition, as
provided by the naturalization laws of some other nations; that when
within the limits of the foreign state of
[Page 686]
which they were previously subject they should
not be deemed citizens of the United States unless they had ceased
to be subjects of such foreign state, in pursuance of the laws
thereof.
When, therefore, it was provided by article 2 of the treaty of
November, 1855, above referred to, that “the citizens of one of the
two countries residing or established in the other shall be free
from military service,” but shall be liable to a pecuniary
contribution by way of compensation, it must be held to include all
United States citizens, whether native born or naturalized.
If they are citizens of Switzerland according to the laws of
Switzerland, they are none the less citizens of the United States
according to the laws of the United States. To say that they are not
citizens of the United States because they are citizens of
Switzerland is a begging of the question (petitio
principii).
In the absence of any qualification or explanation of the word
citizens as used in the second article of the treaty, a fair
interpretation of the language used must be held to include all
citizens, whether native-born or naturalized, and of whatever
nationality, unless there was something in the nature of the treaty
or in the circumstances surrounding the parties at the time of its
ratification that would confine it to one class of citizens; and
that is exactly the case here, for there was no need of a treaty
stipulation exempting native-born citizens of the United States from
military service in Switzerland, for surely it could not be claimed
that a native-born citizen of the United States or a naturalized
citizen of the United States, a native of some other country, who
had never owed allegiance to the Government of Switzerland, would be
subject to military service whilst temporarily residing in
Switzerland. The treaty must therefore have referred to natives of
Switzerland who by the laws of that country were subject to military
service, but having been naturalized in the United States are by the
terms of the treaty exempt from military service, but must pay
pecuniary contribution by way of compensation. There could have been
no other object or purpose in making the stipulation.
In this particular case I shall, if I find an occasion, advise Mr.
Tschudy to submit himself to the authorities of the Republic here,
and in the meantime ask instructions from my Government on the
subject.
With sentiments, etc.,
