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It has never been published, but a copy has now been procured from Wissembourg, where the judgment was delivered, and is printed in the addenda (F.)

These conscription cases are ordinarily dealt with by the local military tribunals, (conseils de guerre,) and there does not seem to have been any other instance of a recent decision on the subject by a civil court, nor does this provincial judgment appear to have been revised by a superior court.

Lord Lyons has been good enough to procure a report from M. Treitt, the counsel to the Paris embassy, upon the general question of the status in France of Frenchmen naturalized abroad, with reference especially to their liability to the conscription. As this report gives full explanation of the French law and of the practice of the French government, it is here inserted at length:

"PARIS, January 26, 1868.

"His Excellency LORD LYONS, embassador of Her Britannic Majesty at Paris :

"MY LORD: Your excellency has requested of me a copy of a judgment rendered by the French court at Wissembourg, in favor of Michel Zeiter, a French citizen by birth. The judgment is quoted by Laurence, in his notes on Wheaton, (edition of 1×63,) as having discharged Michel Zeiter from all the obligations which a Frenchman owes to his country, among others the obligation to perform military service. The reason alleged for this decision is that Zeiter had been naturalized as a citizen of the United States.

"It is added that this judgment seems to be one of the rare decisions (if not the only one) in which a court has acknowledged that the naturalization of a person in a foreign country is sufficient to annul the sovereign rights of the mother country, and the obligations which he has there contracted by his birth.

"In view of the remarks which I had the honor to address to your excellency, you have referred me to a note which Count Walewski, minister of foreign affairs of France, addressed to Mr. Calhoun, the American minister, under date of November 25, 1:59, which note was published in 1860 among the documents communicated to the Congress of the United States. In that note M. Walewski does not admit that a French citizen can, by the mere fact of his naturalization abroad, be exempted from the obligations imposed upon him by the laws of his country, and escape, among other requirements, the military service. In this latter case, says the minister, such refractory Frenchman incurs the penalties provided by the military code (article 230) for failure to perform military duty. M. Walewski, moreover, calls attention to the imperial decree of August 26, 1811, which provides severe penalties for Frenchmen who have become naturalized as foreigners without the authorization of their government.

"Finally, your excellency has been pleased to point me to the ease of one Alibert. belonging to the class of 1839, who failed to perform military duty, and who was, on the 10th of October, 1852, sentenced to be imprisoned for one month therefor, by a court-martial at Marseilles. He appealed, however, from this sentence, to the court of revision at Toulon, and there, with the assistance of the American consul, he pleaded his naturalization in the United States, and was acquitted.

"In sum, your excellency has addressed to me the following question :

"What is the law governing a Frenchman who has been naturalized as a foreigner after his return to France ?

"The question is simple, but the reply will necessarily be complex.

"I give, in the first place, a copy of a sentence of the court at Wissembourg, dated June 2, 1860. (Vide Addenda F.)

"As is seen, this sentence only shows that Zeiter has lost his French citizenship. The legal consequence of this showing is that he can no longer serve in the French army. It was no part of the duty of the court, however, to concern itself with the penalties and civil incapacities which Zeiter might have incurred, as we shall subsequently see, This decision is based upon law, as are several others rendered by different courts in similar cases, especially since the war between the North and South, on account of which many Frenchmen, naturalized as American citizens, returned to France.

"The naturalization of a Frenchman abroad, whatever may be his new country, involves the loss of his French citizenship, and this involves ipso facto incapacity for the military service. This is the case of Alibert; he doubtless proved his American citizenship, and was exempted from the penalty attached to the offense of willfully avoiding military duty, said penalty being imprisonment for from one month to one year, according to article 38 of the army law of 1832.

"The above two cases are not reported in any work on jurisprudence; they are not, however, the only ones; there are half a score of them in the bureau of military justice at the ministry of war.

"The military authorities in France observe with regret the disposition which has been manifested during the past three years, by the young men of the country, to avoid the performance of military duty.

"The ministry of war now proceeds in such cases as follows:

"When the case of a person who has sought to avoid the due performance of mili

T

tary duty is brought before it, it has the party charged with the offense taken before a court-martial, for such a person is a soldier who has not rejoined his regiment.

"If the person seeking to avoid the performance of military duty pleads naturalization in a foreign country, the court-martial defers the enforcement of the penalty and grants the accused a delay, that he may be enabled to prove his foreign citizenship in the courts.

"If he obtains a judgment declaring that he has lost his French citizenship, the courtmartial acquits him, but only when his naturalization took place three years before. If this is not the case, the judges enforce the penalty provided for the offense. In fact, the avoidance of military service is an offense which no mere lapse of time can cancel; it lasts until the military service is rendered. Now, the jurisprudence of courts-martial says that the offense no longer exists when the offender has become naturalized in a foreign country; thenceforward the offender who has been naturalized more than three years incurs no penalty. If, on the other hand, the naturalization did not take place more than three years previously, the ex-Frenchman is treated as a person willfully avoiding military service, and is punished, even though he be a citizen of some other country, no matter which.

"Thus, in order to escape such a penalty, the ex-Frenchman must pass at least three years abroad. If he returns before the expiration of such time, he incurs the risk of suffering imprisonment for from one month to one year, by sentence of court-martial, for he is still avoiding the performance of military duty.

"We must not forget to say that when, in this case, the person seeking to avoid military service has suffered his punishment, he is free, and his foreign citizenship prevents him from being compelled to serve in the French army.

"Such are the rules observed by the bureau of military justice at the ministry of

war.

"Things are managed in about the same way for the national guard. There there are boards of verification.

"It is the duty of these boards to decide concerning the grounds of exemption claimed by persons who refuse to do military duty.

"Now, it often happens (this I say of my own knowledge) that natives of France, when called to serve in the national guard, present American or other naturalization papers. In presence of such documents these persons have been declared exempt from the service by reason of their foreign citizenship. Moreover, an opinion of the council of state of November 18, 1842, has sanctioned this system of jurisprudence.

"From all the foregoing observations what are we to conclude? It is that a Frenchman may, by getting naturalized abroad, escape the obligations which are imposed upon him by the country of his birth.

This consequence is derived from the common law and from the exceptional law. "Article XVII of the civil code expressly says that French citizenship is lost by naturalization acquired in a foreign country. It appears from the debates of the legislature of 1803 that the word 'acquired' was applied to an act of express will, performed according to the legal forms of the new country, and having for its object the renunciation, proprio motu, of French citizenship. (Locré, Esprit du Code Civil, vol. 1, p. 333.) "The civil code, then, permits Frenchmen to acquire a foreign nationality. It is, in fact, a principle inherent in human liberty, a principle of natural right, that a person may leave the soil on which his birth may by chance have thrown him. This principle is admitted by all publicists from Cicero1 down to those of our time. The French laws contain frequent enunciations of it. Naturalization in Prussia, however, is subject, it is said, to the previous authorization of the government. (Prussian code, article 2, book 17, § 127.)

"In France, however, according to the civil code, which is the common law, the right of being naturalized abroad is absolute.

"On the 26th of August, 1811, the Emperor Napoleon I promulgated a decree relative to the naturalization of Frenchmen abroad.

"Article I of this decree is as follows:

"No Frenchman can be naturalized in a foreigncountry without our authorization.' "The following articles mention the civil rights which Frenchmen naturalized in a foreign country shall continue to enjoy in France:

"Article VI is as follows:

"ARTICLE VI. Any Frenchman naturalized in a foreign country, without our authorization, shall suffer the loss of his property, which shall be confiscated; he shall no longer have the right to inherit property, and any legacies which may be left to him -hall pass into the hands of the person whose claim is next to his; provided that such person be a French citizen.'

Finally, Article XI gives the government the power to expel from France any Ciceron, "Oratio

pro

Cornelio Balbo," c. 13; Grotius, lib. ii and v, § 24; Puffendorf, lib. viii, c. 11, sc2: Merlin. Répertoire Général," verbo "Souveraineté," §4; Wolf, 76th part, p. 187; "French Constiation of Frimaire, year VIII," in its 4th article; Toullier, "Code Civil," vol. i, No. 266; &c.

Frenchman naturalized in a foreign country without authorization; and, in case of his return to the territory of the empire a second time, he may be sentenced to be imprisoned for a term of not less than one year nor more than ten years.

"Napoleon I, it is said, was induced to promulgate this decree by seeing Frenchmen who were ill-disposed toward the empire among hostile nations and in foreign armies. Thus is explained the severity of this decree, which has been the object of the most bitter attacks. In the first place, it has been said that it was unconstitutional, because it was prepared and promulgated without the concurrence of the Corps Légis latif, contrary to the constitutions impériales. Moreover, since the fall of the first empire, some writers have maintained that this decree has become obsolete. There are even decisions of the government of the Restoration which have annulled judgments rendered in virtue of this decree. (Decisions of the council of state of June 19, inserted in the Bulletin des lois.)

"A greater number of authors, however, have contended that this decree still had the force of a law, for the reason that it had never been attacked and annulled by the Corps Législatif. Moreover, numerous decisions have declared that the imperial decrees promulgated and executed as laws in the time of the empire have remained in force in all their provisions which have not been abrogated by subsequent laws. In fact, the decree of 1811 has been enforced in cases of legacies left by Frenchmen who had been naturalized abroad without authorization.1

"This decree, however, is none the less a violation of the natural law, as it provides severe penalties for naturalization abroad, while all publicists proclaim the right which every man has to change his country.

"This decree is, at the present day, paralyzed in its application; in fact, the confiscation of property was abolished by the charter of 1814. Then came the law of July 14, 1819, which gives all foreigners the same rights as Frenchmen, as regards property and inheritance, without distinction between foreigners by birth and foreigners by naturalization. A solemn decision of the court of Paris has decided that this decree is not applicable to the right of inheriting property.

"The annals of jurisprudence have not, for more than twenty years, furnished a single case in which either the government or parties interested have caused the enforcement of the decree of 1811. I think that, if the case should be presented, the courts would hesitate a long time before enforcing the rigorous provisions of this exceptional legislation.

But how many uncertainties are there in this matter, so important, since it affects the personal status of the parties.

"Let us observe, however, that the decree of April 26, 1811, (whether it is still in force or has become obsolete,) does not annul naturalizations acquired abroad without authorization; it inflicts penalties therefor, but allows them to exist. The Frenchman has therefore a new country, to which he has been obliged to take the oath of allegiance. No one can have two countries.3 The general interest requires that no one should have two countries.4

"The country of adoption supplants the mother country. In my opinion the exFrenchman is released from his obligations toward the latter. The English government, in giving letters of naturalization to foreigners, notifies them, at the same time, that it does not intend to release them from their obligations toward their mother country.

"This is an act of prudence. But the French law is silent upon the rights which it retains over individuals who obtain naturalization abroad without authority. She places them on a similar footing to strangers so far as relates to civil rights. Thus the French law itself breaks the ties which unite an ex-Frenchman to his mother country. Aside from the confiscation of property and the loss of right of succession-penalties of 1811, to-day inapplicable and unapplied—the law imposes on the ex-Frenchman the sole obligation never to bear arms against France on pain of death.5

"The Frenchman who gives up his nationality knows the rights of which he will be deprived in France. The courts can refuse to give him their judgments in his disputes with foreigners. If he is plaintiff or defendant, he can be subjected to the category of judicatum solri. He no longer enjoys any political or municipal rights. He is disqualified for public offices and the practice of certain professions; in short, to curtail the list, he can be expelled from French territory, like all other strangers, by a simple act of the police.6

"Frenchmen must have calculated inconveniences and the advantages of foreign naturalization. He is released from the burdens imposed by the mother country.

1See, among others, a decision of the court of Pau, of March 19, 1834. (Collection of Decisions, of Dalloz, year 1835, 24 part, p. 38.) Decision of February 1, 1836. Dalloz's Collection of Decisions. 1×K 2d part, p. 71. 3"Statement of reasons for the first title of the Civil Code," 1503. General Repertory of Merlin, verbo "Loi," § 6. Artcle 75 of the Penal Code; and article 11 of the Decree of August. H 1811; articles 21 and 22 of the Civil Code. Article 13, Loi du 3 Decembre 1849, sur les etrangers.

"This state of things is to be regretted. For instance, to become naturalized a Swiss, one year's residence and the payment of a few francs are sufficient. It is a great facility given to young Frenchmen who wish to escape the military law. This point merits the attention of French legislators, but at this moment the law must be taken as it is, and it must be conceded that naturalization abroad releases a Frenchman from his obligations toward France. The decisions of the courts only confirm the expatriation; the consequences of expatriation emanate from the laws themselves; one of these consequences is the exemption from military service.

"I believe that I have answered in every particular the question which your excelleney has put to me. I have freed it from all collateral questions which the loss of French nationality suggests, but which would have rendered the subject obscure. In sum, I am led to the conclusion that France does not impose any other obligation on the ex-Frenchman than not to bear arms against her.

"I take leave to add that this conclusion shocks my inward feelings. I regret to see a simple naturalization abroad cancel all the obligations which are due to the mother country. But questions of law are not solved by the feelings alone; it is a matter of law as it is and not as it ought to be.

"Accept, &c.,

"TREITT,

"Advocate of the Imperial Court, Counsel to the English Embassy.”

NATURALIZATION OF ALIENS IN FRANCE.

Under the old law of France, the Dutch and Swiss and other nations had, by virtue of treaties, the rights of natives, (indigenatus,) and by the Bourbon Family Compact of 1761 a similar privilege was conceded to Spanish subjects.

The law of May 2, 1790, provided

"All those who, born out of the kingdom, of foreign parents, are established in France, shall be regarded as French and admitted, upon taking the civic oath, to the exercise of the rights of active citizens after five years' continuous domicile in the kingdom, if they have, besides, acquired real estate or married a French woman, or established a commercial house, or received in any city letters of citizenship."

The constitution of the 3d of September, 1791, "allows the legislative power to issue to a foreigner, for important considerations, an act of naturalization, on condition only of his residence and oath."

Thus was established the system of "grande et petité naturalisation,” which, with various modifications, has continued in force up to the accession of the present Emperor. The constitution of 1793 did away with the oath and declared French citizens all aliens aged 21 who had been domiciled in France for one year, and who lived by labor. The constitution of 1795 abrogated that of 1793, and made it a condition of naturalization that an alien should have previously declared his intention to domicile himself in France.

By the terms of the third article of the constitution of 1801 "a foreigner becomes a French citizen when, after having attained the age of twenty-one years and declared the intention of settling in France, he has resided there ten consecutive years."

By a decree of the senate of 1804, confirmed by a decree of the 17th of February, 1808, the government was authorized to confer the quality of French citizen, after one year's residence, on any alien who had rendered important services to France, thus reviving the "grande naturalisation" of 1790, but without requiring an oath.

By an ordinance of the 4th of June, 1814, article 1, " in conformity to the ancient French constitutions, no foreigner can, from this day forth, sit, neither in the chamber of peers nor in that of the deputies, unless by important services rendered to the state he has obtained from us (the king) naturalization papers approved by the two chambers."

The privilege of "grande naturalisation" has been conferred on Benjamin Constant and other distinguished foreigners.

These laws were consolidated by the law of the 3d of December, 1849:

“ARTICLE 1. The President of the republic shall decide upon applications for naturalization.

"Naturalization cannot be granted until after inquiry made by the government respecting the morality of the foreigner, and upon the favorable opinion of the counsel of state.

The foreigner shall be obliged, besides, to fulfill the following conditions:

"1. To have, after the age of twenty-one years, obtained authority to establish his domicile in France in conformity to article 13 of the Civil Code.

"2. To have resided ten years in France since this authorization.

"A naturalized foreigner shall enjoy the right of eligibility for the National Assembly only by virtue of a law.

Bulletin des Lois, vol. cixvii, p. 545.

"2. Notwithstanding, the delay of ten years can be reduced to one year in favor of foreigners who shall have rendered important services to France, or who shall have introduced into France an industrial enterprise, or useful inventions, or distinguished talents, or who shall have founded great institutions.

"3. So long as the naturalization shall not have been issued, the authority granted to a foreigner to establish his domicile in France can always be revoked by decision of the government, which must take the advice of the council of state.

"4. The provisions of the law of the 14th October, 1814, respecting the inhabitants of the departments annexed to France, cannot be applied in the future.

"The preceding provisions do not affect, in any respect, the rights of eligibility to the National Assembly acquired by naturalized foreigners before the promulgation of the present law.

"6. The foreigner who shall have made, before the promulgation of the present law, the declaration prescribed by the third article of the constitution of the year VIII, can, after a residence of ten years, obtain naturalization according to the form indicated in article 1.

"7. The minister of the interior can, through police, order all foreigners traveling or residing in France to immediately leave French territory and cause them to be conducted to the frontier.

"He shall have the same right regarding the foreigner who shall have obtained authority to establish his domicile in France; but after the lapse of two months the measure shall cease to be in force, if the authority shall not have been revoked as indicated in article 3.

“In the departments on the frontier the prefect shall have the same right in regard to a non-resident foreigner, subject to immediate reference to the minister of the interior.

"8. Every stranger who shall have evaded the execution of the measures specified in the preceding article, or in article 272 of the Penal Code, or who, after having left France in consequence of those measures, shall have returned without the permission of the government, shall be brought before the courts and condemned to an imprisonment of from one to six months.

"After the expiration of his term of punishment he shall be led to the frontier. "The penalties prescribed by the present law can be reduced in conformity to the provisions of article 463 of the Penal Code."

On the 29th of June, 1867, a law was passed reducing the term of residence required from ten to three years:

"ART. 1. The articles 1 and 2 of the law of 3d December, 1849, are supplanted by the following provisions:

"ART. 1. A foreigner who, after the age of twenty-one years, has, in conformity to article 13 of the Code Napoléon, obtained authority to establish his domicile in France and has resided there three years, can be admitted to enjoy all the rights of a French citizen.

"The three years shall count from the day when the application for authority shall have been registered at the ministry of justice.

"The domicile in a foreign country to fill an office conferred by the French govern ment is equivalent to residence in France.

"It is granted upon an application for naturalization, after inquiry into the moral character of the foreigner, by a decree of the Emperor, issued upon the report of the minister of justice, subject to the council of state.

"ART. 2. The delay of three years fixed by the preceding article, can be reduced to a single year in favor of foreigners who shall have rendered important services to France, who shall have introduced into France an industrial enterprise or useful inventions, or who shall have brought to it distinguished talents, or founded great institutions, or instituted great agricultural improvements.

"ART. 2. The fifth article of the law of December 3, 1849, is repealed.”

It will be seen, therefore, that there are two forms of naturalization in France: "La grande naturalisation," which confers the privilege of sitting in the chambers. and which corresponds, in some measure, to the former English form of special naturalization by act of Parliament, repealing the disabilities of previous acts in favor of a particular person, as was done in the case of Prince Albert, and to the present naturalization by act of Parliament, as in the Bischoff-sheim case.

"La petite naturalisation" corresponds with our naturalization by certificate from the secretary of state, and is granted by lettres de déclaration de naturalité to aliens who have complied with the conditions of the law. The alien is supposed to have resided in France with the permission of the government, from the fact of his name and dom

M. Dumangeat, in his note to M. Felix's Droit International Privé, doubts whether "la grande pate ralisation" still exists, as by the decree of February 2, 1852, all electors are eligible to seats in the Corps Legislatif, and the senate is composed of such citizens as the Emperor may please to select and he cites Prince Poniatowski as an instance of a citizen naturalized by imperial decree and promoted to the senate without any special law.

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