[Inclosure in No. 53.] Mr. Francis to Baron Pasetti. LEGATION OF THE UNITED STATES, YOUR EXCELLENCY: Referring to my interview with your excellency, yesterday afternoon, relative to an American citizen, one Louis Feinknopf (Leibel being the Hebrew rendering of the name Louis), who has been notified by the military authorities at Krakau to report for service in the Austrian army, I have the honor to submit the facts in the case for the consideration of your excellency. Leibel (or Louis) Feinknopf was born at Krakau on the 2d of January, 1860. His father, Markus Feinknopf, died many years ago. His mother, a widow, still resides at the old home in Krakau. In September, 1876, being then sixteen years of age, Leibel (or Louis) Feinknopf emigrated to the United States, no one of his family accompanying him. Nearly six years thereafter-his residence being continuous in that country from the period of his arrival there-he was naturalized and declared to be a citizen of the United States, by the district court of the United States for the southern district of Ohio, on the 3d of April, 1882. On Monday, October 20, Leibel (or Louis) Feinknopf arrived at his native place (Krakau) from America, for the purpose of visiting his mother and other relatives. On the 23d of October he was notified by the military authorities at Krakau to appear and report for service in the Austrian army. He answered the summons, protesting, however, that as an American citizen he owed no such service, and requesting that he be permitted to visit Vienna to confer with the United States minister there in a matter so vitally affecting his rights. The permission was promptly granted, and Feinknopf reported to me at this legation, yesterday morning, October 27. I have presented to your excellency, in brief, a statement of the facts in this case. The question now recurs, can the American citizen Feinknopf be properly held for service in the Austrian army? I think the treaty of 1870 between the United States and AustriaHungary should settle this question. Article I, of that treaty, reads as follows: "Citizens of the Austro-Hungarian monarchy, who have resided in the United States of America uninterruptedly at least five years, and during such residence have become naturalized, citizens of the United States, shall be held by the Government of Austria and Hungary to be American citizens, and shall be treated as such.” It will be conceded, I think, that Feinknopf has met all the conditions for admission to American citizenship above set forth, and must therefore be recognized as a citizen of the United States under the terms of Article I of the treaty. But being an American citizen can he still be held for military service in his native country? In answer to this, the vital question in the case, I beg leave to call your excellency's attention to Article II of the treaty: "In particular, a former citizen of the Austro-Hungarian monarchy, who, under the first article, is to be held as an American citizen, is liable to trial and punishment, according to the laws of Austro-Hungary, for non-fulfillment of military duty. "(1) If he has emigrated after having been drafted at the time of conscription, and thus having become enrolled as a recruit for service in the standing army. (2) If he has emigrated whilst he stood in service under the flag or had a leave of absence only for a limited time. **(3) If, having a leave of absence for an unlimited time, or belonging to the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out." "On the other hand, a former citizen of the Austro-Hungarian monarchy, naturalized in the United States, who by or after his emigration has transgressed the legal provisions on military duty by any acts or omissions other than those above enumerated in the clauses numbered 1, 2, and 3, can on his return to his original country neither be held subsequently to military duty nor remain liable to trial and punishment for the non-fulfillment of his military duty,” It does not appear that Leibel (or Louis) Feinknopf "has transgressed the legal provisions on military duty by any acts or omissions enumerated in the clauses numbered 1, 2, and 3; and this being conceded he cannot be held here (quoting the language of the treaty) to military service nor remain liable to trial and punishment for non-fulfillment of his military duty." In this connection the undersigned begs leave to call your excellency's attention to a case almost exactly similar to this one, which was presented by Mr. Phelps in a note from this legation to His Excellency Count Kalnoky, F. O. No. 23, of the date of June 3. 1882, and the reply thereto by Count Szögyényi for the minister of foreign affairs, 18637 dated October 6, 1882, wherein it is announced that the sentence passed upon the persons named, Leeb and Jacob Mörser, American citizens, has been repealed, and that they were discharged, their case coming under the provisions of Article II of the treaty of September 20, 1870, by which they were exempted from military service in the Austrian army. Your excellency will observe by reference to this case as above that the decision arrived at applies to the one to which I now urgently call your attention. The undersigned claims in behalf of Leibel (or Louis) Feinknopf exemption from military service in the imperial royal army under the provisions of the treaty of September 20, 1870, and respectfully requests that instructions be communicated by the Government of his Imperial Majesty to the military authorities at Krakau to discharge the said Feinknopf from arrest and discontinue all proceeding intended to exact from him service in the Imperial Royal army. The undersigned avails, &c. JOHN M. FRANCIS. [Inclosure 2 in No. 53.] Mr. Francis to Baron Pasetti. LEGATION OF THE UNITED STATES, YOUR EXCELLENCY: Referring to my note F. O. 11, of the date of October 28, 1884, relating to the case of Louis (or Leibel) Feinknopf, an American citizen, who has been summoned by the military authorities at Krakau to report for assignment to duty in the Austrian army, I have the honor to state that so far he has received no notification assuring him exemption from his service to which he is entitled under the treaty of 1870 between the United States and Austria-Hungary, and he writes me, under date of November 19, that the summons is still held as binding upon him. I again earnestly invoke the attention of your excellency to this subject as one that concerns the personal liberty and rights of a citizen of the United States. If the representation of this case as made by me is an accurate statement of the facts, as I think it is, Louis (or Leibel) Feinknopf is no more subject to conscription for service in the Austrian army than any native citizen of the United States would be on visiting this country, and it would seem that he should be promptly relieved from arrest and his name erased from the military roll. I need not say, what will readily occur to your excellency, that for a period of four weeks he has been subjected to anxiety and inconvenience in consequence of the proceedings of the military authorities at Krakau against him, and very properly he asks that in his behalf there may be accorded the protection assured him as an American citizen under solemn treaty obligations. Respectfully requesting reply to my communication of October 28 on this subject, an answer to this note as soon as may be convenient to your excellency, I have, &c., [Inclosure 3 in No. 53.-Translation.] JOHN M. FRANCIS. Count Szögyényi to Mr. Francis. VIENNA, November 29, 1884. Referring to the esteemed note of the 21st instant, F. O. No. 13, I have the honor to inform the honorable John M. Francis, envoy extraordinary and minister plenipotentiary of the United States of America, that I have immediately transmitted the documents concerning the case of Louis Feinknopf to the Imperial Royal ministry of public defense with the request that, as the matter was urgent, the decision might be sent in the briefest possible time. The undersigned embraces this occasion to renew to the honorable envoy of the United States of North America the expression of his high esteem. For the minister of foreign affairs. SZÖGYÉNYI. [Inclosure 4 in No. 53.] Mr. Francis to Count Szögyényi. LEGATION OF THE UNITED STATES, YOUR EXCELLENCY: Referring to my notes, numbered 11 and 13, of the dates of October 28 and November 21, respectively, and the note of your excellency numbered 27460, dated November 29, treating of the case of an American citizen, Louis (or Leibel) Feinknopf, who was summoned in October last by the military authorities at Krakau to report for duty in a regiment to which he had been assigned, I now beg leave to state that, in my notes referred to, together with memoranda on the subject handed by me to your excellency on the 28th of November, namely: (1) Certificate of the birth of the said Feinknopf; (2) notarial certificate showing the year when he emigrated to the United States, and (3) the summons served upon him by the military authorities at Krakau, the evidence is presented that under the treaty of 1870 the American citizen, Louis (or Leibel) Feinknopf, cannot be held to do military duty for Austria-Hungary, and I therefore requested that he be relieved from arrest and his name be stricken from the military roll at Krakau. The case appeared so clear in the light of recent precedent as well as from the evidence presented, that it seemed to me a decision would be arrived at without much delay; but seven weeks have already elapsed since the matter was brought to the attention of his Imperial Royal Majesty's Government, and I am not yet advised as to its action, if action has been taken by it in the premises. I take the liberty, therefore, of again calling your excellency's attention to this matter, seeing that further delay may involve serious inconvenience, as to me it will be embarrassing. I avail myself, &c., JOHN M. FRANCIS. [Enclosure 5 in No. 53.-Translation.] VIENNA, December 28, 1884. In the matter of Leibel Feinknopf, the Imperial Royal ministry of foreign affairs respectfully begs to convey to the knowledge of the Hon. M. Francis, envoy extraordinary and minister plenipotentiary of the United States of America, that the Imperial Royal Statthalter (governor of province) at Lemberg has reported by telegraph that the Imperial Royal commander of the respective army corps has raised objections to the discharge of the above named from military service, which will cause a renewal of investigations to which is to be attributed the delay in coming to a decision of the case. In the mean time the Imperial Royal Statthalter (governor of province) at Lemberg has been put in possession of Leibel Feinkopf's naturalization certificate, deposited here a few days ago by the honorable envoy of the United States of North America, which document is likely to be the means of bringing the whole affair to a speedy and favorable decision. The Imperial Royal ministry of foreign affairs, not losing sight of this matter, will do everything in its power to effect an early settlement, and will immediately advise the envoy of the United States of America of such fact. The undersigned, &c. For the Minister of Foreign Affairs. [Inclosure 6 in No. 53.] SZÖGYÉNYI. Louis Feinknopf to Mr. Francis. KRAKAU, January 8, 1885. SIR: I arrived here this morning and was immediately arrested by the authorities at Krakau, forcibly enlisted in the army, and now find myself in their power, without seeing my way out of it, for I am at this very moment at the soldiers' retreat and in uniform. If there is anything that can be done for me it must be done at once, for I am in great distress and I only look to you for help. The papers which you gave me were taken from me and were not respected. I pray you to do your utmost, and go in person to the ministry of foreign affairs, show them my dispatch so that the case meets with speedy attention. Yours, &c., LOUIS FEINKNOPF. 1 [Inclosure 7 in No. 53.] Mr. Francis to Count Szögyényi. LEGATION OF THE UNITED STATES, YOUR EXCELLENCY: Referring to my interview with your excellency on the 8th instant respecting the case of Louis (or Leibel) Feinknopf, an American citizen who, in disregard of treaty obligations, has been deprived of his liberty by the military authorities at Krakau, I now desire to enter a formal protest in behalf of my Government against the wrongful action of the Krakau authorities referred to. Their course seems to have been the more indefensible from the fact that many weeks prior to the action complained of the Government of his Imperial Royal Majesty had been fully informed of the status of Feinknopf as an American citizen clearly entitled under the treaty of 1870 to exemption from any military service to the latter power. In view of information received by me from Krakau this morning to the effect that Feinknopf was, on the 8th instant, forcibly taken to the barracks, compelled to put on the military uniform of a soldier in the ranks, and placed under the strictest surveillance; and furthermore, that, showing to the authority which consigned him to this indignity, a certificate issued by this legation on the previous day, the 8th instant, to the effect that his naturalization certificate and other papers named had been placed in possession of the ministry of foreign affairs and were still held by said ministry, the Krakau authority referred to refused to return the said certificate to Feinknopf on his demand for the same. In view of these facts, and considering also that this citizen of the United States is still held by the military power in deprivation of his liberty, and under the most rigorous supervision as if a prisoner guilty of criminal misdoing, I must earnestly repeat my request that the said Feinknopf be promptly relieved from his practical imprisonment by the military authorities at Krakau, and that his name be stricken from the military roll as owing service in the Imperial Royal army. Your excellency will permit me the liberty to suggest that this case seems to be one involving the invasion of personal rights, and it will no doubt occur to the mind of your excellency that some explanation of the long delay in its disposition in a form for record would be desirable in the interest of the cordial amity existing between two great and always friendly nations. At the same time I desire to thank your excellency for the earnest personal interest your excellency has from the beginning manifested in this case to secure its satisfactory adjustment.. I vail myself, &c., JOHN M. FRANCIS. [Inclosure 8 in No. 53– Translation.] Count Szögyényi to Mr. Francis. VIENNA, January 10, 1885. The imperial royal ministry of foreign affairs, in transmitting herewith the telegram of Leib Feinknopf, of the 8th instant, has the honor of informing Hon. John M. Francis, envoy extraordinary and minister plenipotentiary of the United States of America, that the imperial royal military commander at Krakau has been ordered by telegraph to furlough the above named, pending the decision of the case. In view of this fact the imperial royal ministry of foreign affairs reserves to itself the privilege of making further communication to the honorable envoy of the United States as soon as the competent authorities have brought the matter to a decision, which intention had been made known also in the note of the 28th ultimo, No. 29856. For the minister of foreign affairs. SZÖGYÉNYI. [Inclosure 9 in No. 53.] Mr. Francis to Count Szögyényi, LEGATION OF THE UNITED STATES, YOUR EXCELLENCY: I have the honor to acknowledge the receipt of the esteemed note, 153, of this day's date, informing me that the military authorities at Krakau had been instructed by telegraphic order to release upon furlough Louis or Liebel Feinknopf, the American citizen who had been consigned to the barracks at that place and put in uniform for service in the imperial royal army, as stated in my communication of this day which had been dispatched when the note of your excellency, as above, was delivered to me. It is satisfactory to know that Feinknopf has been allowed his liberty pending the decision of his case by the imperial royal government, but it is still important that his rights under the solemn guarantees of treaty shall be promptly and fully recognized to the end that he may have the liberty of action accorded to any citizen of the United States, who, visiting this country, has violated no law of the Imperial Royal Government, And I have to urge most earnestly that the decision which has beer. so long delayed, to the injury of an American citizen who has been the subject of military prosecution at Krakau, may be rendered at as early a day as possible. I renew, &c., JOHN M. FRANCIS. [Inclosure 10 in No. 53.] Mr. Francis to Count Szögyényi. LEGATION OF THE UNITED STATES, YOUR EXCELLENCY: Referring to your excellency's note of the 10th instant, No. 153, informing me that an order had been sent by telegraph directing the military authorities at Krakau to liberate on furlough the American citizen Louis (or Leibel) Feinknopf, pending decision by the Imperial Royal Government upon his case, I now hasten to transmit to your excellency a dispatch received at this legation this evening, by which it appears that up to the time when this dispatch was written (apparently at a late hour this afternoon) Feinknopf had not been granted the furlough as above. I need scarcely assure your excellency that this delay involves additional embarrassment. To my mind, as I think it must also appear to your excellency, the course of the military authorities at Krakau in this matter seems entirely unjustifiable. Your excellency will oblige me by returning the inclosed dispatch as convenience may permit. SIR: Referring to your note of yesterday, No. F. O. 29, the inclosure of which I have the honor to return to you, I beg to inform you that, having this morning again communicated with the imperial royal ministry of war, I have received the answer that on Friday last, 9th instant, a telegraphic message has been sent to the military authorities at Krakau, ordering them to immediately liberate on furlough Ciebel Feinknopf. I have, &c., SZÖGYÉNYI. P. S.-I am just informed that the minister of war has to-day telegraphed to Krakau to inquire whether the order given on Friday has been executed. No answer has been received up to this hour. As soon as I receive the answer I shall not fail to transmit it to your excellency. |