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(Inclosure 2 in No. 50.]
Mr. Tripp to Mr. Mix.
UNITED STATES LEGATION,
Vienna, October 11, 1893. DEAR SIR: I have your favor of October 6 in reference to your imprisonment in Galicia, and your claim for damages for your loss of property, detention, etc.
Iu reply I am obliged to say that I do not feel justified in making a claim on the part of the United States against the Austrian Government for damages in this case, although as I can see you have suffered great wrong and insult as well as pecuniary loss; yet the fault seems to have been rather that of the blundering officials than of the Government itself; and the principal officers of the Austro-Hungarian Government, who must be regarded as its representatives, rather than the offending local officers, as soon as their attention was called to the matter, acted very promptly in ordering your discharge. A government can only be held responsible when it sanctions the action of its officials, done in violation of law; it ought not to be held responsible for unauthorized acts which it promptly disowns upon being cognizant thereof; the responsibility in such case falls upon the offending official. Your remedy lies in a private action against the municipal officers who committed the outrage upon you willfully or through overzeal in the performance
of a supposed duty. I have examined your case with some care and I am rather disposed to commend, than to criticise, the Government of Austria-Hungary for its action in the matter, and I do not feel that it is a case in which our Government would be justified in bringing the matter to the attention of the Austro-Hungarian Government by way of complaint for the acts of its subordinate officers, which it promptly condemned.
There is another feature in the case that should not be overlooked in considering Fonr claim for damages even against the local officers. Przemysl is a fortified town, and it is a high offense in that province to take any pictures of its fortifications or immediate surroundings. You, a stranger, were found taking pictures, and while in fact you were innocent of any intentional wrong, it might be found that there were reasonable grounds for suspicion in the mind of a very vigilant officer (ambitious of notice) that your conduct was not prompted wholly by desire for pleasure and amusement.
Should the facts develop a sufficient apparent ground for action on the part of a zealous officer, having no apparent reason for committing a wilful wrong, it would be 3 sufficient defense, even in a private action, especially in a court presumably, as such must be, not inclined to be unfriendly to the Government which created it, and toward the officers acting in its behalf.
This, however, is but a snggestion on my own part for consideration of yourself and the counsel you may einploy, for my official duty ends with the determination that the case is not one in which the Government I represent onght itself to interTene.
It is pleasant to note the kind expression of thanks on the part both of yourself and employers for my action in your behalf, and I trust I may be permitted to remain, Yours, etc.,
Mr. Tripp to Mr. Gresham.
UNITED STATES LEGATION, Vienna, November 1, 1893. (Received November 16.) SIR: Referring to my dispatch No. 50, under date of October 29 last, relative to the claim of Edgar W. Mix for damages for arrest and detention by the local authorities at Przemysl, Galicia, I have the honor to submit herewith copy of a letter of Mr. Mix, recently published in the European papers, and in the Paris Herald of October 29, 1893, in which, while blaming the Austrian authorities for their overzealous action, he practically admits his owu imprudence. I have, etc.,
Mr. Uhl to Mr. Tripp.
DEPARTMENT OF STATE,
Washington, November 17, 1893. SIR: I have to acknowledge receipt of your Nos. 50 and 51, of the 29th ultimo and 1st instant, in relation to the claim of Mr. E. W. Mix against the Austrian Government growing out of his arrest on suspicion of being a Russian spy.
The Department approves your conclusion that upon the facts this Government would not be warranted in making a claim against the Austrian Government on behalf of Mr. Mix for damages. By taking photographs at Przemysl he violated the law in force there, and however innocent in his intentions or ignorant of the law he may have been, his acts subjected him to the arrest and annoyance which he suffered. His release was by your exertions effected as soon as could possibly have been expected, and meantime no harsh or unreasonable treatment seems to have been experienced by him. I am, etc.,
EDWIN F. UHL,
VALIDITY OF NATURALIZATION CERTIFICATE.
Mr. Tripp to Mr. Gresham. No. 58.]
UNITED STATES LEGATION, Vienna, December 21, 1893. (Received January 5.) SIR: I have the honor to transmit herewith for your information copies of correspondence between this legation and the imperial and royal ministry of foreign affairs at Vienna, relative to the genuineness of a naturalization certificate issued by the municipal court of Milwaukee, Wis., to a former subject of Austria, Cajetan Kern, held by the provincial court at Linz, on suspicion of having violated the provisions of the military laws of this monarchy, and bis subsequent release. I have, etc.,
(Inclosure 1 in No. 58.- Translation.]
VIENNA, November 1, 1893. A certain Cajetan Kern, of Bervdet-Schlag, in Upper Austria, 25 years old, is held by the imperial royal provincial court at Linz, on suspicion of having violated paragraph 45 of the inilitary law of April 11, 1889, No. 41.
Cajetan Kern has produced the accompanying certificate of naturalization and declared himself to be an American citizen.
The above-named court is not in a position to judge of the genuineness and validity of a document presented by a private person, issued by a foreign authority and verified by nobody, and has therefore addressed itself to this ministry in order to ascertain whether the document in question is an authentic proof of the regularly made naturalization of the above-named individual in the United States of America.
To this end, the imperial and royal ministry of foreign affairs has the honor of soliciting the kind intervention of the honorable envoy of the United States, and to request him to give his opinion as early as convenient regarding the documents in gnestion, in order that the ministry of foreign affairs be enabled to convey the desired information to the provincial court at Linz. The undersigned avails himself, etc.,
(Inclosure 2 in No.58.)
Mr. Tripp to Count Kalnoky.
UNITED STATES. LEGATION,
Vienna, December 4, 1893. Your EXCELLENCY: Referring to the esteemed note of your excellency, No. 45033, of date November 1, 1893, in reference to the naturalization of Cajetan Kern, I have the honor to say that I am now in receipt of an abstract of the record of the municipal court of Milwaukee, Wis., in the United States of America, covering the naturalization of Cajetan Kern, and I herewith inclose for the consideration of the honorable imperial and royal ministry of foreign affairs of Austria-Hungary, and for transmission to the honorable court at Linz, where proceedings are pending against the said Cajetan Kern, the copy of such record accompanied by the certificate and seal of this legation, and permit me at the same time to avail myself, etc.
(Inclosure 3 in No.58.-Translation.]
Count Cziraky to Mr. Tripp.
VIENNA, December 11, 1893. Sir: The imperial and royal ministry of foreign affairs expresses its sincere thanks for the favored note of December 4 last, containing information in regard to the legal naturalization of a former Austrian subject, one Cajetan Kern, in the United States of America. The ministry of foreign affairs bas, however, the honor to inform the honorable envoy of the United States that by a communication received in the meantime from the imperial and royal provincial court in Linz, before whom the said Cajetan Kern was called to account on suspicion of having violated the provisions of the military law, it appears that proceedings against the same have been dismissed. The undersigned avails himself, etc.,
CASE OF EX-CONSULAR AGENT DUNHAM.
Mr. Townsend to Mr. Gresham.
UNITED STATES LEGATION,
Vienna, August 1, 1894. (Received August 24.) SIR: I have the honor to transmit herewith for your information the inclosed copies of correspondence relating to the claim of one Ernst Oechsle against the late U. S. consular agent, William Dunham, and the refusal of the present consular agent, Mr. Schlessing, to permit the officers of the district court at Haida to seize articles claimed to be the personal property of the said Mr. Dunham.
You will observe that the present consular agent, Mr. Schlessing, based his refusal to allow the articles in question to be seized upon the mistaken idea that they were to be held as the property of the U. S. Government to cover a claim which the latter had against Mr. Dunham, notwithstanding the consul-general of the United States at Vienna wrote to the U. S. consul at Reichenberg under date of January 2, 1894, informing him that the articles in question were the personal property of said William Dunham, and requesting him to direct Mr. Schlessing to deliver the articles to the officers of the imperial and royal court at Haida. After a thorough examination of all the correspondence which passed between the Department of State, the consul-general in Vienna, the U. S. consul in Reichenberg, and the U. S. consular agent at Haida, much of which has not been inclosed as it is simply a repetition of the facts as set forth in the correspondence herewith submitted, I directed the consular agent at Haida to deliver the articles in question to the officers of the court at that place, and I have his reply to the effect that this has been done. I have, etc.,
(Inclosure 1 in No. 861.- Translation.] Count Welsersheimb to Mr. Townsend.
VIENNA, April 28, 1894. Sir: In September, 1893, the former consular agent of the United States at Haida, Mr. William L. Dunham, left his post without settling a number of debts which he had contracted.
One of his creditors, Ernst Oechsle, brought suit against him for payment of florins 478.43, and received judgment that some articles, left behind by the debtor, should be turned over to him by way of execution.
The present consular agent of the United States at Haida, Mr. Schlessing, objects to this execution, claiming exterritorial rights for his office, and saying that the articles left behind by Mr. Dunham were property of the United States. In case they were not consular property, he would, on instructions from his superiors, turn over the articles to the court.
In the correspondence which thereupon followed between the court at Haida and the consul-general in Vienna, the latter wrote under date January 2, 1894, that of the objects under execution, an iron safe and a wooden railing, were personal property of Mr. Dunham, and that Mr. Schlessing would be instructed to turn over these articles to the court.
Nevertheless the latter on January 17, 1894, refused again the attempted execution, producing a letter from the consul-general at Vienna, dated January 10, 1894, which he translated to the officers of the court, to the effect that the consul-general approved his actions in the matter and that he held that tbe things should not be delivered to the court.
Upon renewed written demand to Mr. Schlessing by the court for delivery of the articles, the former replied on January 30, last, that he could not allow the things to leave the office.
The matter having reached this point, it was submitted to the ministry of justice and by the latter to the foreign office, in order to bring light into the case and to bring pressure to bear upon the consular agent at Haida to give up the position he holds, as it appears entirely unjustified.
Principles of international law between the United States and Austria and the consular convention of July 11, 1870, do not grant to consular officers exterritorial rights and the privileges of immunity connected therewith. Article V of the treaty grants the immunity of the archives only and secures the papers against search and seizure, but does not extend to objects in the rooms or in the office of the consular officer.
The court at Haida was therefore fully authorized to order the execution, especially as the letter from the consul-general of January 2, 1894, pointed out these two objects as not being property of the United States, and the resistance made by Mr. Schlessing to the action of the court and to the subsequent demand to deliver the articles, is therefore unjustifiable.
If the court at Haida has so far shown great moderation in view of the official position of Mr. Schlessing, and has refrained from applying measures of coercion, it is to be expected that Mr. Schlessing, as soon as he has been fully convinced of the true state of the case, will allow the matter to take its course, and thereby avoid the necessity of further actions to be taken by the court to secure its rights.
To this end the ministry of foreign affairs bas the honor of requesting the kind intervention of the hunorable chargé d'affaires ad interim, Mr. Townsend, and to beg that the matter above referred to be investigated by him, the necessary dispositions be made and that the result be communicated to this office. The undersigned avails himself, etc.,
(Inclosure 2 in No. 861.)
UNITED STATES LEGATION,
Vienna, May 1, 1894. Sir: Will you kindly inform me, as soon as possible, as to the nature of the articles which the court at Haida claims to be the property of the late consular agent, Nr. William L. Dunham. It is said that they consist of an iron safe and a wooden railing. Is this true? Are there any other articles at the agency which are the personal property of the said William L. Dunham?
The ministry of justice of Austria-Hungary, through the ministry of foreign affairs, have taken this matter in hand, and have made an international question of it. They claim that the principles of international law and of the consular convention of 1870 between Austria-Hungary and the United States do not grant to consular officers exterritorial rights and the privileges of immunity connected therewith. Article V grants the immunity only of the archives, and secures the papers against search and seizure, but does not extend to objects in the rooms or in the office of the consular officer.” The court at Haida was therefore fully entitled to order the execution, especially as the letter from the consul-general at Vienna, of January 2, 1891, pointed out the two objects above referred to as not being the property of the United States, and “the resistance made by Mr. Schlessing to the action of the court, and to the subsequent demand to deliver the articles, is unjustifiable."
The ministry of foreign affairs further states that, in view of your official position, the court has shown great moderation in pushing its just claim, and has, until now, desisted from applying measures of coercion.
I see from copies of correspondence on the subject in the consul-general's office here that it has been admitted that the iron safe and wooden railings are the property of said William L. Dunham, and further, from dispatch No. 27, from the State Departinent to Mr. Judd, dated December 15, 1893, that “Mr. Dunham's creditors should be allowed to issue execution against any personal property left by him at the agency."
In view of these facts, I am at a loss to understand upon what grounds you still refuse to submit to the action of the Austro-Hungarian district court at Haida.
Awaiting further detailerl information on the subject before presenting the claim of the ministry of foreign affairs of Austria-Hungary to the authorities at Washington, I remain, etc.,
(Inclosure 3 in No. 865.)
UNITED STATES LEGATION,
Vienna, May 29, 1894. SIR: After a thorough examination of the copies of the correspondence relating to the claim of the court at Haida against Mr. Dunham, sent to me by you, and also those on file at the consulate-general in Vienua, I find your action in refusing to deliver the iron safe and wooden railing, which are undoubtedly the personal property of Mr. Dunham, to the authorities at Haida, absolutely unjustifiable. You will therefore, immediately upon receipt of this order, deliver these articles to the authorities of the court at Haida, to satisfy any just claims against Mr. Dunham. The ministry of foreign affairs of Anstzia-Hungary has been informied of this decision and will no doubt communicate the fact to the authorities at Haida. I remain, etc.,
(Inclosure 4 in No. 861.1
UNITED STATES LEGATION,
Vienna, May 30, 1894. Your EXCELLENCY: Iu reply to the esteemed note from the imperial and royal ministry of foreign affairs of date April 28, 1894, requesting that the case of Mr. Ernst Oechsle and the imperial and royal court at Haida against Mr. Dunham, lato U. S. consular agent, and Mr. Schlessing, present U.S. consular agont at Haida, be investigated by this legation. I beg leave to say that immediately upon receipt of the above-mentioned note from the imperial and royal ministry of foreign affairs, I