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No. 4105.]

[Inclosure 2 in No. 54.-Translation.]

Mr. Lachenal to Mr. Broadhead.

FEDERAL DEPARTMENT OF FOREIGN AFFAIRS,
POLITICAL DIVISION,

Berne, August 14, 1894.

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.

AUGUST 17, 1894.

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

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.,

JAMES O. BROADHEAD.

Mr. Uhl to Mr. Broadhead.

No. 64.]

DEPARTMENT OF STATE,
Washington, September 12, 1894.

SIR: I have received your dispatch No. 54, of August 20, 1894, in reference to the case of Fred. Tschudy, a native of Switzerland, and a naturalized citizen of the United States.

Mr. Tschudy, it appears, remained in this country just the length of time necessary to secure naturalization papers, and immediately upon obtaining them returned, in 1893, to Switzerland. He procured from you a passport as a naturalized American citizen. Recently the Swiss authorities have ordered him to report for military duty and he has complained to you, protesting against the exercise of such jurisdiction by the Swiss Government over him, an American citizen.

Upon laying the matter before the President of the Confederation,

you were informed by the minister of foreign affairs that although Tschudy has become an American citizen under our law he still remains a Swiss citizen under Swiss law, and therefore is still subject to the obligations of a citizen in that country.

You thereupon addressed a note to the minister of foreign affairs, admitting the general principle of international law that every nation may deny to its citizens the right of expatriation. You, however, further called the attention of the Swiss Government to the position which this Government, since its foundation, has maintained as to the right of expatriation, stating that it had always asserted the right in the most positive manner; and you reminded the minister that at the time of the conclusion of the treaty of 1855 between that country and this, the views of this Government on the subject of expatriation and naturalization must have been well understood and must be considered in connection with the interpretation of that treaty.

Quoting from Article II of the treaty, which provides that "the citi zens of one of the two countries residing or established in the other shall be free from military service," you insisted that the word “citizen,” not being limited either by express language or by the context, must be understood-especially in the light of the views of this country above referred to as embracing naturalized as well as native citizens of the United States residing in Switzerland.

Your note to the minister elaborates and enforces this view of the question in a very clear and able manner, and your efforts to induce the Swiss Government to concur in this view are fully approved by this Department.

If Mr. Tschudy has returned to Switzerland for the purpose of making his permanent residence there, this circumstance, in connection with the fact that he left the United States immediately after securing his natu ralization papers, tends very strongly to raise the belief that his temporary immigration to this country and his naturalization here were merely for the purpose of evading the duties of Swiss citizenship without intending to assume those of American citizenship. If this be the case, this Department would not be disposed to insist upon the application to him of the principle for which you are contending. But in the case of a return to Switzerland of one born there, who has bona fide emigrated and been naturalized here, I concur with you in the opinion that a proper interpretation of the treaty should exempt him from the performance of military duty.

I am, etc.,

EDWIN F. UHL,

Acting Secretary.

TURKEY.

ASSAULT ON MISS MELTON.

[See Foreign Relations, 1893, pp. 642, 649, 650, 652, 656, 665, 668, 683, 689, 695, 700, 704.]

No. 124.]

Mr. Terrell to Mr. Gresham.

LEGATION OF THE UNITED STATES, Constantinople, December 6, 1893. (Received December 26.) SIR: I have the honor to inform you that I have no late information of progress in the trial of the men under arrest for assaulting Miss Melton. A long letter of 40 or 50 pages from Mr. McDowell, received on the 2d instant, reveals no evidence sufficient to convict. I deem it unnecessary to forward a copy. I inclose copy of a letter just received from Mr. McDowell, which indicates that the new governor sent from here is desirous of doing his duty. I have no means of doing more in this matter to enforce respect for our people in that distant region. The trial is progressing on the river Tigris, at Mosul, opposite old Nineveh.

*

I have, etc.,

[Inclosure in No. 124.]

A. W. TERRELL.

Mr. McDowell to Mr. Terrell.

MOSUL, TURKEY, November 16, 1893.

DEAR SIR: I have been informed that the vali received a strong telegram from the grand vizier last week in reference to our case, which I presume to be due to some action taken by you.

The vali has twice sent me assurances of his interest in the case since receiving the telegram.

I thank you for your perseverance in the matter. If redress is obtained it will be due only to your indefatigable efforts.

I sent you by last post a full statement of our case.

If it has not

been received on receipt of this letter, will you please to telegraph me to that effect that I may send a duplicate of it.

There is nothing new to say about our case.
Very respectfully, etc.,

E. W. McDOWELL,

Mr. Terrell to Mr. Gresham.

LEGATION OF THE UNITED STATES,

No. 134.] Constantinople, December 13, 1893. (Received Jan. 2, 1894.) SIR: I inclose for your information the copy of a letter just received from the Rev. E. W. McDowell, at Mosul, dated November 24. The letter to which he refers, written to the church secretary in New York, asking further action of you, may have induced the belief that Miss Melton's case was neglected here. The estimable gentlemen in charge of missionary enterprises are, I fear, sometimes unreasonable in their demands; certainly there was no occasion for this gentleman's colleague to write home to have the Department take more energetic action.

**

I have, etc.,

[Inclosure in No. 134.]

A. W. TERRELL.

Mr. McDowell to Mr. Terrell.

MOSUL, TURKEY IN ASIA, November 24, 1893.

DEAR SIR: Yours of October 31 was received by last post. I am glad to know that our Government shows no signs of receding from its first position in this case, and that in case of failure to punish the assailants of Miss Melton an indemnity will be asked.

We, from the first, have been morally certain as to who the guilty parties are, but did not think it wise to specify their names until the time had come to give the evidence. While, as you suggest, it is impossible for us to secure personal testimony in the case, I feel confident that the circumstantial evidence which I have sent you will strike you as being exceedingly strong against the men referred to, whose names I gave.

There has nothing of importance occurred in the case since I last wrote you. Abdullah Pacha, sent to Amadia to investigate the matter, is taking his time to do it, and has already visited and interviewed the intimate friends of the prisoners in villages on this side of Amadia, e. g., Sheikh of Bowrnemee and Beshid Bey.

But I am satisfied to have him go on in his own way, for I am sure he is weaving a rope with which, figuratively speaking, we can hang the prisoners.

I regret to say that my colleague, before he reached Mosul, hearing what seemed to him unfavorable news about our case, wrote to our secretaries at New York, asking them to secure further action by the Department of State. Possibly they may send this letter to Secretary Gresham, who perhaps may telegraph you.

Please accept this as an apology beforehand. We are perfectly satisfied that you are doing what is right in the case. In my letters to our missionary board I have not had a word of complaint to offer, and shall write them this week to inform Secretary Gresham, in case the letter referred to has been sent him, that it was written by one not fully acquainted with the circumstances, and that we on the ground are satisfied that you have pushed the case as rapidly as was possible under the circumstances.

Very sincerely, etc.,

FR 94

-44

E. MCDOWELL,

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