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foreign nations can declare that the children of their subjects or citizens, born abroad, owe an allegiance to the parent's country. Dual allegiance thus exists and will continue to exist until one principle or the other is adopted, or until a convention is adopted at some international conference abolishing it and prescribing the conditions of a single allegiance.
To take up the case of Mr. Lelong. The Department of State was clearly right in advising him that, inasmuch as under the French Code “every person born of a Frenchman in France or abroad is a Frenchman," he might be subject to the performance of military service in France if he voluntarily placed himself within French jurisdiction. To have refrained from informing him of his dual allegiance and of the possibility of military service would have been little less than criminal, for with France at war and fighting for its very existence it is not a time to test the exemption of a person born in the United States of French parents who finds himself voluntarily in France and who is physically fit for military service. The Department did not say that he would be liable to military service; it refused to give an assurance that he would not be, and in the letter to Mr. Lelong dated May 5th the Department said:
If at any time in the future you should find it necessary to visit France and should there be molested upon the ground that you are a French citizen, you should inform a diplomatic or consular officer of the United States, who would report the matter to the Department in order that it might take such measures in your behalf as would seem warranted by the peculiar facts and circumstances of your case.
Foreign governments, as well as the United States, recognize the embarrassment arising from dual allegiance, and it would be proper for the American diplomatic officer to call the attention of the Minister of Foreign Affairs to the case of one situated as Mr. Lelong, and request him to obtain from the Minister of War an exemption from service of the American citizen.
The question of military service discussed, though not necessarily involved, in the Da Prato case, is one which has been the subject of much discussion and no little ill feeling. The United States has insisted upon the right of expatriation, meaning thereby the right of foreigners to leave their home country and to become naturalized citizens of the United States. The doctrine was proclaimed by Act of Congress July 27, 1868. It was made effective, it is believed, for the first time in the Act
5 Stat. at Large, Vol. 15, Chap. 249, p. 223.
in reference to expatriation of citizens and their protection abroad, which says in Section 2:
That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.*
The difficulty has arisen from the fact that the citizen or subject owes allegiance to his country, and in return for allegiance he receives the protection of his country. As the country is entitled to his allegiance it cannot be deprived of it without its consent, and as in European countries military service is compulsory, those countries are naturally unwilling to forego the right to military service to those who become naturalized in a foreign country and later return to the land of their origin.
After prolonged discussion, running over many years, the right of expatriation has been generally recognized, with the exception, it is believed, of Russia and Turkey; but in some countries, of which Italy is one, naturalization in a foreign country “does not work exemption from the obligations of the military service nor from the penalties imposed on those who bear arms against their country.” It is true that a foreigner who has become naturalized in the United States is an American citizen, but in the case of a country denying the right of its subjects to expatriate themselves, or making the right depend upon consent previously had, or upon the performance of military or other duty, the person, although a naturalized American citizen, may be treated in accordance with the the laws of the home country upon bis return, upon the very simple and sure ground that each country legislates for itself and that neither can impose its legislation upon the other.
It was therefore of importance in the Da Prato case that the father had ceased to be an Italian subject before the birth of his child, who was therefore an American citizen by the combination of both of the elements of citizenship, if both were needed, namely, jus soli and jus sanguinis, because at the time of his birth his father was an American citizen.
The remedy for conflicting claims upon naturalized citizens is the conclusion of naturalization treaties. This policy has been pursued by the United States, and it has with the German States the so-called Bancroft treaties, and, in addition, naturalization treaties with the following European countries besides Germany: Austria-Hungary, Belgium,
6 Stat. at Large, Vol. 34, Chap. 2534, p. 1228.
Denmark, Great Britain, Norway, Sweden, Portugal. It has not, however, been able to negotiate naturalization treaties with all of the European states.
THE BINDING EFFECT UPON THE GERMAN EMPIRE OF THE TREATY OF
LONDON OF 1867 NEUTRALIZING LUXEMBURG
The invasion of Belgium by the German army on August 4, 1914, has been the subject of constant discussion, and the misfortunes of the country have been so present to the minds alike of the critic and the reader that the principles of law involved have ordinarily not been considered with that detachment and absence of feeling so necessary in the discussion of a complicated legal question. It is believed that the invasion of Luxemburg raises the question involved in the invasion of Belgium, and it is believed further that these questions can be better discussed with reference to Luxemburg than with reference to Belgium, for it is not charged that Luxemburg has been guilty of unneutral conduct.
For present purposes it is not necessary to consider the history of Luxemburg. It is sufficient to say that the Congress of Vienna erected Luxemburg into a grand duchy, assigned it to William I, King of The Netherlands; that in 1830 Belgium revolted against its union with Holland; that as a consequence of the revolt Luxemburg was divided between Belgium and Holland, a situation reluctantly accepted by the King of Holland in 1839; that the Grand Duchy of Luxemburg was neutralized by the Treaty of London of May 11, 1867, to prevent its acquisition by France; that in 1890, by the death of William III of Holland, the Grand Duchy passed from Holland to the male heir, because the Salic law obtaining in the Duchy prevented Wilhelmina, Queen of Holland, from succeeding to the Duchy; and that from 1890 the Grand Duchy has been not only a sovereign and independent state, but has been such a state under a ruler of its own.
It should be said, however, that although William I, King of the Netherlands, was made Grand Duke of Luxemburg, the Duchy was not annexed to the Kingdom of The Netherlands. It was what is called a personal union. It formed a part of the German Confederation created by the Congress of Vienna, and by a modification of the terms thereof Prussia obtained the right of garrisoning the fortress of Luxemburg, which lasted until 1867. Upon the dissolution of the German Confederation in 1866, as a consequence of Prussia's war against Austria, the
North German Confederation was formed under the leadership of Prussia, in which the Grand Duchy was not included. In 1867, therefore, the Grand Duchy was an independent state, whose ruler happened also to be King of Holland.
The Grand Duchy is a small state of some 990 square miles, adjoining the Belgian province of the same name and forming a small portion of the northern boundary of France. Possessed of Alsace-Lorraine, the France of Napoleon III was anxious to acquire Luxemburg, which adjoined Lorraine and which would have rounded out his territories and made it easier for him to invade Germany. Napoleon III took no part in the war of 1866 between Prussia and Austria and fancied that he would be allowed compensation in the form of an increase of territory without opposition from Prussia. Napoleon was eager to obtain Luxemburg, and its Grand Duke, King William III of Holland, was willing to sell. Prussia, however, was unwilling to let its future antagonist acquire this territory, and a Prussian garrison, in accordance with the modified terms of the Congress of Vienna, occupied the fortress of Luxemburg. War was not probable, but a conference of the Powers took place in London to consider the question, and the Treaty of London, signed May 11, 1867, neutralized the Duchy. The Powers represented at this conference were Great Britain, Austria, Belgium, France, Italy, The Netherlands, Prussia, and Russia.
The government and ownership of Luxemburg are recognized by the treaty as belonging to the House of Orange-Nassau; that is to say, the status quo was expressly confirmed. The conference, however, while recognizing the rights of the House of Orange, intended that the Duchy should be withdrawn from European ambition as well as European aggression. Article 2 of the treaty neutralized Luxemburg, and its neutrality was guaranteed by the Powers, and by virtue of the guarantee fortifications and an army became unnecessary. Hence Article 3 of the treaty decreed the abolition of the fortress, allowing the Grand Duke, however, to maintain a sufficient number of troops to preserve order, and by Article 3 of the treaty the Prussian garrison was to be withdrawn. These articles, however, are so important in themselves and define so clearly the status of “a perpetually neutral state” that it is necessary to quote them and to comment upon them.
Article 2 reads as follows: The Grand Duchy of Luxemburg, within the limits determined by the act annexed to the treaties of the 19th April, 1839, under the guarantee of the courts of Great Britain, Austria, France, Prussia, and Russia, shall henceforth form a perpetually neutral state.
It shall be bound to observe the same neutrality towards all other states.
The hig contracting parties engage to respect the principle of neutrality stipu. lated by the present article.
That principle is and remains placed under the sanction of the collective guarantee of the Powers signing parties to the present treaty, with the exception of Belgium, which is itself a neutral state.
In the first place, it will be observed that the status created by the annex to the treaty of April 19, 1839, is recognized as under the guarantee of the parties to that treaty-namely, Great Britain, Austria, France, Prussia, and Russia, -and that status includes the territories of Belgium, as stated in Articles 1, 2, and 4 of the annex, and also the status of neutrality created by Article 7 of the annex, which is as follows:
Belgium, within the limits specified in Articles 1, 2, and 4, shall form an independ. ent and perpetually neutral state. It shall be bound to observe such neutrality to wards all other states.
The next clause stipulates that, in return for the recognition of its neutral status, Luxemburg shall observe neutrality toward all the other states. In consideration, it would seem, of the neutral status and of the duty imposed upon Luxemburg to observe neutrality, the Powers parties to the treaty of May 11, 1867, engaged not only to respect the principle of neutrality contained in the present article, but solemnly declared that the principle is and that it remains "under the sanction of the collective guarantee” of the signatory Powers, with the exception of Belgium, whose condition as a neutral state under the treaty of 1839 was recognized as such by the treaty of 1867. Now, if Article 2 stood alone, there might be some doubt as to the meaning of the contracting Powers as to the rights and duties of a neutral state and as to the specific right of Luxemburg under the treaty. It is believed, however, that the contracting Powers have defined in Article 3 either the rights and duties of a neutralized state or that they have specifically defined the rights and duties of Luxemburg as a neutralized state under Article 2 of the treaty. Article 3 is therefore quoted:
The Grand Duchy of Luxemburg being neutralized, according to the terms of the preceding article, the maintenance or establishment of fortresses upon its territory becomes without necessity as well as without object.
In consequence, it is agreed by common consent that the city of Luxemburg, considered in time past, in a military point of view, as a federal fortress, shall cease to be a fortified city.