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French Nationality Laws Imposing Nationality at Birth

Published online by Cambridge University Press:  04 May 2017

D. O. McGovney
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Extract

France has had a richer legislative experience in matters of nationality than any other country. Scarcely a decade has passed since the Revolution in which some project for legislation has not been proposed, and during the intervals between these projects the subject has been kept alive by very intelligent discussion on the part of statesmen and writers. A resumé of French legislation will indicate the trend of thought in France and throw light upon the policies behind the present law. In so brief a summary as is here presented it will be impossible, however, to refer to the numerous proposals which never passed beyond the stage of debate. We shall confine ourselves to the laws as adopted, and these will suffice for our purpose.

The law existing in France immediately anterior to the Revolution conferred French nationality on persons (1) born on French soil; (2) born in a foreign country of a French father who had not established his domicile in that country nor lost his intent to return, provided the person so born returned to France.

Type
Research Article
Information
American Journal of International Law , Volume 5 , Issue 2 , April 1911 , pp. 325 - 354
Copyright
Copyright © American Society of International Law 1911

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References

1 Pothier (1699-1772), Traité de personnes, part I, tit. II, sec. 1st, § 43. For the earlier law, see Weiss, , Droit International Privé (1907), 2d ed., Vol. I, pp. 41-43 Google Scholar.

2 The civic oath was suppressed by the Constitution of 24 June, 1793.

3 The framers of the Code, in view of the fact that the generous abolition of all disabilities of aliens had not met with reciprocal legislation in other countries, felt that they were justified in retrenching, and yet they were unwilling to return to the severity of the ancient system. Consequently, they took a “wise middle ground between the two extremes.” Marcadé, Explication du Code Civil, Vol. I, p. 110.

The Code provided: “Art. 11. An alien shall enjoy in France the same civil rights as are or shall be accorded to Frenchmen by treaties with the nation to which the alien belongs.”

“Art. 13. An alien who shall have been admitted by the authorization of the government to establish his domicile in France shall there enjoy all civil rights so long as he. continues to reside therein.”

The act of June 26, 1889, has amended Art. 13 so as to make its provision a preliminary to naturalization. It now reads: “An alien who shall have been authorized by decree to establish his domicile in France shall enjoy all civil rights.

“The effect of the authorization shall cease at the expiration of five years, if the alien has not applied for naturalization, or if his application has been rejected.

“In case of his decease before naturalization, his wife and his children who were minors at the time of the decree of authorization shall have the benefit of the authorization and the period of time which has elapsed.”

The domicile here meant, which can be obtained only by the authorization of the government, is sometimes referred to as domiciliation, to distinguish it from domicile in the ordinary legal sense. The prevailing view at present in France is that domicile in matters of private law, as to questions of conflict of laws, may be acquired apart from the domicile of Art. 13. Just what are the disabilities of an alien who has not the benefit of any treaty (under Art. 11) and is not domiciled with the consent of the government (under Art. 13) is a much controverted question, written upon voluminously. The positions of the writers and the courts are so conflicting that it would be presumptious for a foreigner to undertake to disentangle or reconcile them. See the digest of cases and treatises in Fuzier-Herman, Code Civil Annoté and Supplement, sub Art. 13. Weiss says, “Three grand systèmes, each with the authority of illustrious indorsements, have been proposed for the solution of this question,” and he proposes a fourth of his own. These four systems are set forth in his Droit International Privé, 1st ed., Vol. II, pp. 182-195.

Under the most illiberal view, however, it seems that the disabilities in France of even such an alien are less than under some other modern systems of law.

4 Geouffre de Lapradelle (1893), De la nationalité d’origine, dioit compare, droit interne, droit international, p. 138.

5 Locré, Legislation civile, t. II, p. 58, quoted in Weiss, Vol. I, p. 46.

6 Mallevine, Analyse raisonnée de la discussion du Code civil au Conseil d’Etat, t I, p. 18, quoted in Weiss, Vol. I, p. 46.

7 Under the Code of 1804 the establishment of a French national in a foreign country without intent to return terminated his French nationality. This was a material qualification of the jus sanguinia. The provision was abrogated by the legislation of 1889. See Weiss, Vol. I, p. 567 et seq.

Under the present law there are only four important causes of loss of French nationality:

  1. (1)

    (1) voluntary acquisition of a foreign nationality, Civil Code, Art. 17, § 1;

  2. (2)

    (2) acceptance of official position under a foreign government, Ib., § 3;

  3. (3)

    (3) entering foreign military service without the consent of the French4 government, Ib., § 4;

  4. (4)

    (4) marriage of a French woman with a foreigner provided the law of the latter’s state confers its nationality upon her, Ib., Art. 19, § 1.

On the loss of French nationality, see especially Weiss, Vol. I, pp. 496-593.

8 Article 1. Every individual born in France of a foreigner who himself wag born there is a Frenchman, unless within the year which follows the attainment of his majority, such as is fixed by French law, he does not claim a foreign nationality by a declaration made either before the municipal authorities of the place of his residence, or before the diplomatic or consular agents accredited in France by the foreign government.

9 Weiss, Vol. I, p. 187.

10 Code civile, Art. 8, § 1.

11 “Legal nationality only is regarded; e. g., though father and mother be German by blood, if the father has been naturalized a Frenchman, however recently, the child is French.

12 Since all countries are agreed that marriage confera upon the wife the nationality of the husband, probably excepting Turkey, a difference of nationality between husband and wife seldom occurs. It may happen, however, in case the husband changes his nationality after marriage, while the wife does not. Grec, pp. 43, 44. Differences of blood between husband and wife are by no means infrequent, and if blood were the criterion, the physiologist and psychologist would have to decide which contributes most to the making of the child, the father or the mother.

Laurent once expressed the opinion that a child ought to be allowed to choose between the nationality of the father and that of the mother, where a difference of nationality existed, though he later retracted this opinion in view of the resulting inconvenience, and the uncertainty of the child’s nationality during minority. Weiss, p. 57.

Most authorities are now agreed that under the jus sanguinis the child should follow the nationality of the father. See authorities cited in Weiss, p. 58, note 3.

13 Grec (1898), Des modes d’acquisition de la qualité de français (thèse), pp. 65-69; Weiss, pp. 59-62. But see Aubry et Rau, who consider the moment of conception as controlling, Droit Civil Français (1897), 5th ed., Vol. I, p. 347 and note. Cogordan, who considers the statemtrit of the text the correct interpretation of French law, opposes it on theory. “It would seem,” he says, “that wherever there is a question as to the father in his relations to the children, it is to conception that we ought to refer. It may be said, in fact, that at this moment the work of the father is completed.” p. 35. This is erroneously identifying the principle of the jus sanguinis with the effect of blood instead of treating it as a presumption of the nationalizing influences under which the child will be reared. The father’s influence will doubtless be toward preparing the child for that nationality which he has himself adopted.

14 Weiss, pp. 63-64; Grec, pp. 47-8; Rouard de Card (1893), La nationalité française, p. 49; Lapradelle, pp. 157-8; but contra: Cogordan, p. 36; Cluzel (1901) De la nationalité des enfants mineurs d’étrangers dans la législation française (thèse), pp. 9-16; Campistron (1894), Commentaire pratique des lois des 26 juin 1889 et 22 juillet 1893 sur la nationalité, p. 23.

Grec, while holding that French law is contra, maintains in theory (p. 46) that a posthumous child should follow the father on the ground that if he had had other children there might be a difference of nationality among the children should the posthumous child follow the mother. The Institute of International Law at its Venice session declared for the rule that a posthumous child should follow the father. Such is the Japanese law by express provision. Whatever principle is applied, it is one of narrow application, for, as stated above, the cases where the mother’s nationality differs from the father’s are few. Yet to the cases there referred to we have here to add cases where a wife though having her husband’s nationality during his lifetime may have changed since his death, but prior to the birth of the child. If the question is to be settled upon principle, it is difficult to see why a posthumous child should not follow the nationality of the mother. Whatever may be the unfortunate position of the elder children upon whom the law at their birth has imposed the nationality of the father under the presumption that they will grow up under his influence, a presumption which has failed if the elder children are still young, there is no reason why the law should not give the posthumous child the nationality of the mother, for the presumption is that it will grow up under her influence.

16 Code Civile, Art. 8, § 2.

17 Ib., Art. 8, Sec. 1, § 2.

18 Stemler, Application pratique, Clunet, 1890, p. 388.

19 It is probably sufficient that proof of the parentage of both father and mother occurs on the same day, whether in the same or separate legal acts, or judicial proceedings.

20 Code Civile, Art. 8, Sec. I, § 2. The language of the law is “the child will follow the nationality of the father.” Of course, this is inaccurate. French law can merely declare that a person is either a French national, or not one, i. e., a foreigner. It cannot confer any particular foreign nationality. Thus if the parent whom the child should follow is an American father who has never resided in the United States, the child, if born outside of the United States, will not be an American, for American law does not so declare. Where the “ personal law” of a litigant is brought into question in a French court, will the court be bound by the literal expression of the Code? Doubtless not.

Since an illegitimate child is almost invariably brought up under the influence of the mother, though the father be legally known, it seems that the jus sanguinis as applied here is in conflict with the presumption of” assimilation.

21 Grec, p. 58.

22 Cogordan (1890), La nationalité au point de vue des rapporte internationaux, 2d ed., p. 35; Grec, p. 70: Weiss, Vol. I, p. 77.

23 Weiss, Vol. I, p. 78 ; Grec, p. 70.

24 Grec, p. 70; Weiss, Vol. I, pp. 78-9.

25 Cogordan, p. 35; Weiss, p. 79; Le Sueur et Dreyfus, p. 19; Grec, pp. 71-81.

26 Stemler, Application pratique, de la nouvelle loi sur la nationalité par l’administration, Clunet, 1890, p. 389. This is also the opinion of Lapradelle, pp. 169-173; of Gruffy, De la nationalité de l’enfant légitimé, Clunet, 1895, p. 982, and of Cluzel, p. 182.

27 Cogordan, p. 37 ; Weiss, p. 81 ; Grec, p. 81; Lapradelle, p. 174. The latter states that no French writer has ever pronounced a different opinion, and calls attention to the error of Attorney General Bates, in his statement of French law on this point in the Report of the Naturalization Commission.

The reasons stated by these writers are that adoption does not at all destroy the relations of the adopted child with his natural parents, Grec, p. 81; that the right to admit new nationals belongs to the State, and private persons ought not to exercise it. Weiss, 82-83; Lapradelle, p. 174.

28 Code Civile, Art. 8, § 2.

29 Grec, p. 85.

30 Grec, p. 85 ; Weiss, Vol. I, p. 255.

31 Code Civile, Art. 8, § 2.

32 Grec, p. 85; Weiss, Vol. I, p. 254.

33 Grec, p. 85 ; but see Weiss, p. 254, note 3.

34 The text of this decree is published by Grec, p. 392.

35 As amended by the law of July 22, 1893.

36 Grec, p. 117. Grec thinks that a repudiation is not retroactive either in this case or in those of Art. 8, § 4, p. 118, note 1.

37 Grec, p. 123.

38 Grec, pp. 212-228, especially p. 224; Cluzel, pp. 135-141, especially p. 140; Weiss, Vol. I, pp. 142-153.

39 Code, Art. 9, § 10; Grec, pp. 213-228; Cluzel, pp. 134-164.

40 40 Code, Art. 20.

41 Cluzel, p. 147 and note, citing in accord: Lesuer et Dreyfus, p. 155; Cogordan, 2d ed., p. 100; Audinet, in Clunet, 1891, p. 37; contra, Weiss, pp. 151–2.

42 Code, Art. 8, § 4.

43 It is doubtful, moreover, whether the nationality thus imposed is retroactive. See Grec, pp. 134-146 for full discussion pro and con. This much disputed point arises solely in questions of private law, and need not concern us here.

44 Article 9, § 1.

45 Article 9, § 4.

46 Article 9, § 7. It is not retroactive, Art. 20.

47 « Article 9, § 10.

48 « Article 8, § 4.

49 « Article 9, § 1.

50 At least this is the opinion prevailing after some conflict.

51 A ministerial circular of August 28, 1893, prescribes that the repudiator shall support his declaration by (1) his certificate of birth; (2) the certificates of birth and marriage of his father and mother; (3) a certificate in due form from the government he claims as his, proving that it considers him its national ; (4) that he has answered any call to arms made on him in his country or that he is not required to perform military duty there.

52 Article 9, § 11; Grec, 227.

53 Code, Art. 10.