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tions froin headquarters. I shall, therefore, wait until I hear from you before presenting the case to the foreign office, especially as it will be necessary for me to have the following additional data, viz, the date and place of Hofmann's birth, date of his emigration, date of his return, and his domicile prior to his emigration. I may add for your information and for the consideration of Mr. Hofmann, that it is extremely doubtful if the Government of Austria-Hungary will withdraw their order of expulsion, as they have carried into effect exactly similar orders in like cases in the past. I quote as follows from a letter received by this legation from the foreign office in a corresponding case:
"The expulsion took place in conformity with article 2 of the law of July 27, 1871, because bis stay in Austria was considered inconsistent with public order.
"Not coming under the provisions of 1, 2, and 3 of Article II of the treaty of September 20, 1870, he was not on his return to Austria held to perform military service. The treaty has therefore not been violated, inasmuch as his United States citizenship was recognized.
* The above-mentioned treaty, however, does not deprive the imperial and royal government of the right to issue a decree of expulsion against any foreigner whose stay in the cour try may be considered as being inconsistent with public peace. In the present case the United States citizenship was obtained with tho evident intention, or at least with the full knowledge of avoiding by so doing, the performance of the duties of an Austrian subject, under the protection of the treaty of September 20, 1870.
"The naturalization took place, therefore, when regarded from an Austrian legal point of view, doubtless in fraudem legis.
“The provisions of the Austrian military laws of October 2, 1882, were not framed until after the treaty of September 20, 1870, had been concluded. The result is, that the l'. S. Government does not always judge the proceedings of the authorities here against former Austro-Hungarian subjects from the same point of view, however justified the measures may be, according to our laws.”
You will observe from the foregoing that the Austro-Hungarian Government reserves the right to exercise expulsion upon any foreigner whose stay in the country may be considered as being inconsistent with public order. To say that the stay of Mr. Hofmann is inconsistent with public order is doubtless stretching the point to its utınost limits, and upon this point must we base our claim. Awaiting further details, I am, etc.,
(Inclosure 3 in No. 92.)
UNITED STATES CONSULATE,
Praque, July 24, 1894. SIR: In compliance with your request of the 19th instant I wish to give you the following further information in the case of David Hofmann:
He was born Ma 21, 1864, at Dobraken, in Bohemia; emigrated the United States in July, 1883; returned May 15, 1894. His domicile prior to his emigration was Wenussen, in Bohemia. His appeal is pending, and I have received no further official information. I am, etc.,
(Inclosure 4 in No. 92.)
UNITED STATES CONSULATE,
Prague, August 2, 1894. SIR: The governor of Bohemia has dismissed the appeal of David Hofmann on the ground that he did not appeal within the time prescribed by law, nainely, within three days. I am sorry; I would like to have heard the governor's ruling on this question.
A copy of the decision is herewith inclosed.
I have written to Mr. Hofmann that under these circumstances he will have to leave. Will you bring it before the imperial and royal minister of foreign affairs ? I'am, etc.,
(Inclosure in inclosure 4 in No. 92.]
PROVINCIAL GOVERNMENT OF BOHEMIA,
Prague, July 31, 1894. To the District Captain at Mies :
The imperial and royal provincial government finds that the appeal of David Hofmann, domiciled at Ullitz, who acquired citizenship in the United States, made by him against decision of the court dated July 8, 1894, No. 12756, decreeing his expul. sion from the kingdoms and countries represented in the Reichsrath, was presented too late, and dismissed because the appeal was not made within the lawful limit of three days after the sentence had been made known, and not until July 16, 1894.
Aside from this, the reasons for expulsion are justified.
According to paragraph 7 of the law of July 27, 1871, No. 88, no further appeal can be made.
The district captain will take the necessary steps to carry out the order for expulsion.
The supplements of the report of July 18, 1894, No. 13971, are herewith returned with the information that a copy of this decision has been transmitted to the U. $. consulate in Prague.
PRAGUE, July 31. Transmitted to the U. S. consulate at Prague with reference to the note addressed to the district captain at Mies and the appeal made by David Hofmann, presented in the esteemed note of July 14, 1894.
FOR THE GOVERNOR OF THE PROVINCE.
Mr. Uhl to Mr. Tripp.
DEPARTMENT OF STATE,
Washington, September 4, 1894. SIR: I have to acknowledge the receipt of your No. 92, of the 13th ultimo, in relation to the expulsion of David Hofmann from Bohemia.
In reply I have to say that Hofmann, having come to this country a short time before he arrived at the age for military service in Austria, is by the terms of the treaty of 1870 exempt upon his returm to that country from trial and punishment for nonfulfillment of military duty.
There is, however, nothing in the treaty or in the general principles of international law to prevent the Austro-Hungarian Government from expelling Hofmann, upon his return there, under the circumstances of his case, "for reasons of public welfare.” The expulsion seems to have been made after due judicial examination into the facts, and without any circumstances of harshness or oppression.
I can see no ground for exception or protest against the action of the Austro-Hungarian authorities. I am, etc.,
EDWIN F. UHL.
CASE OF JOHN BENICH-VALIDITY OF PASSPORT.
Mr. Tripp to Mr. Gresham. No. 93.]
UNITED STATES LEGATION, Vienna, August 23, 1894. (Received September 8.) SIR: Referring to my dispatch No. 13, dated July 1, 1893, and your esteemed reply No. 29, dated September 4, 1893, in reference to the case of John Benich,' I have the honor to submit herewith the following
1 See Foreign Relations, 1893, pp. 15, 23.
correspondence between this legation and the ministry of foreign affairs of Austria-Hungary, together with the correspondence between this legation and Mr. Gelletich, the consular agent of the United States at Fiume.
The case has become one of considerable importance, not only by reason of the attention it has received from the press, both in Europe and America, but on account of the principles of international law involved in the construction of the treaty of 1870 between the two governments; and it gives me great pleasure to announce that, notwithstanding it is claimed on the part of the provincial authorities of Croatia that the American citizenship of John Benich was procured by fraud, every principle contended for in your dispatch No. 29 of September 4, 1893, to this legation, has been conceded by the Government of Austria-Hungary.
First. It is conceded that the passport of the citizen of either government, native or naturalized, not bearing upon its face the insignia of its own invalidity, can not be called in question by the municipal, district, and inferior officers of the government, but that such paper is prima facie evidence of the facts therein stated and must be respected as such. If the subordinate officers of the government have suspicions of the fraudulent character of the paper presented, they may report the fraud or irregularity alleged to some tribunal, if any, having competent authority under the rules of international law to determine the same.
Second. That it is the duty of either Government, if its properly constituted tribunal shall be satisfied that the certificate of naturalization, upon which the passport was based, was fraudulently or illegally procared, to present such consideration to the Government granting the same with the request that an examination be had and, if the fact be found that such certificate of naturalization was fraudulently or illegally obtained, that it be canceled and annulled.
Third. That the arrest or detention of citizen bearing a passport of his Government, issued by competent authority, by a subordinate officer of either Government, is a breach of the courtesy due to a friendly nation, and a breach of official duty on the part of the officer so offending.
Fourth. That consular and other representative officers of the Government of the United States have the right to intervene for the protection of American citizens so unlawfully arrested, and a refusal to permit them so to do by such officiating subordinate officer, or the use of offensive or contemptuous language by him in reference to the Gov. ernment of the United States, its representatives, or the treaty stipulations existing between the two nations, not only subjects the guilty party to censure and reprimand, but such conduct is an offense against the laws of Austria-Hungary, which may be tried and punished as such.
The precedent established by this case is an important one and will save this legation and the Government of the United States much annoyance in the future from the assumed right arrogantly asserted on the part of the district officers throughout the provinces of AustriaHungary to summarily pass upon American passports and to determine by ex parte evidence, which the bearer is wholly powerless to refute, the validity or invalidity of a solemn document under the great seal of the National Government and founded upon the solemn decision of a court of record. The instructions which were issued by the governor of Croatia to the subordinate officers of that province have in effect also, as I am informed, been issued to the district officers of other prov. inces of Austria-Hungary, so that in the future we may confidently
expect that travel by American citizens in Austria-Hungary will not be subject to so frequent and annoying interruptions on the part of the local authorities as in the past. In fact, since the reception of my pote of September last by the foreign office, a perceptible improvement has been observed at this legation, and the positions taken therein, founded upon your esteemed dispatch, have evidently been the basis of the action of the honorable imperial and royal ministry of foreign affairs of Austria-Hungary in determining the individual cases which have intermediately arisen and been decided by the same.
It gives me great pleasure to say that there is no ground for complaint as to the treatment of American citizens in the past by the national authorities of Austria-Hungary. It has been uniformly kind and considerate. Every case presented to the foreign office has been satisfactorily determined, and in a manner not only conciliatory and courteous, but with an apparent desire to give to the existing treaty as to naturalization of citizens a fair and liberal interpretation.
The only question in this case, which is now open and requires consideration by you, is the claim made by the Croatian authorities that the certificate of naturalization issued to Benich was fraudulent and illegal and should be canceled.
I have read the facts found by the Croatian authorities and I can but conclude that they have proceeded upon a too narrow and an erroneous interpretation of the terms of the treaty under which they claimed to act. They seem to conclude, and in such conclusion the foreign office seems to concur, that the five years' residence provided for in the treaty means actual uninterrupted bodily presence of the applicant for the period prescribed. Such an interpretation would make the accidental or ignorant crossing of the boundary line of the nation, even for the moment, a suspension of his inchoate right and require a new inception of the probation period. I can not subscribe to such a narrow and unnatural construction of the language of the treaty. I take the terms “have resided” and “residence” to mean something more than mere personal presence; they are intended to have the larger and more natural definition which carries with it the idea of a fixed and permanent abode, an abiding place selected with the animus manendi on the part of its owner or possessor. The agent of our Government, in drafting or consenting to the phraseology used in the treaty, which is attested by his name, must presumably have had in mind the existing laws of his own Government in reference to the subject-matter of the treaty itself. This is indicated by the period of time required as to residence being the same as that in case of ordinary naturalized citizens of the United States, and the entire phraseology of the section is not unlike that used in the amended statute of 1870, enacted about two months prior to the conclusion of this treaty. That act required that “no alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States." (U.S. R. S., $ 2170.) The language of the treaty is: “Citizens of the Austro-Hungarian monarchy who have resided in the United States of America uninterruptedly at least five years” and have become naturalized, etc., shall be treated as citizens, etc. Both use the term "resided.” The one requires that he reside for a continuous term and the other that he shall have resided uninterruptedly. If there be a difference in meaning, it must be admitted that the statute is more rigorous in its requirements as to residence than the treaty. It could more plausibly be argued that the continued term of five years was broken by personal absence than that his residence was interrupted thereby. It will be remembered, however, that Congress gave a legislative construction to this legislation by striking out from the original act of 1813 the words without being during the said five years out of the territory of the United States, the courts having held under the old statute, as they were obliged to do, that personal absence, though temporary, interrupted the running of the statute. After the amendment so made in 1848, however, the courts have been unanimous, so far as I am informed, in holding mere personal presence not indispensable, and that mere temporary absences, unaccompanied by changes of abode, habitation, or intention, do not interrupt the probation of the alien.
It will be observed that if this be the proper construction to be given the treaty, the voluminous testimony taken by the authorities of Croatia, at an expenditure of so much time and the exhibition of so great diligence, has but little bearing on the case itself, for if it be established that young Benich returned to Croatia for a temporary visit to his parents, with the fixed and continuing intention of returning to his home in Chicago, the acts proven by the numerous witnesses would not be in conflict therewith. He might, without abandoning his residence, witness baptisms, attend marriages, arrange balls, and even receive passports from Austria-Hungary, if he found it necessary to visit Bosnia and Herzegovina. He was not yet a citizen of the United States; he was still a citizen of Austria-Hungary, and the latter alone could grant him such a right. With due respect, it seems to me that no fact enumerated in the findings of the court, except the unexplained absence of Benich for so long a period of time, tends to show an interruption.
Should you, however, concur in the apparent interpretation of the treaty by the authorities of Austria-Hungary, you will, without doubt, take immediate steps to have the certificate of naturalization of Benich canceled and annulled. But should you, on the other hand, agree with me in my construction of the language therein employed, I am impelled to ask you to request the superior court of Cook County, Ill., to require Benich to show cause why the certificate of naturalization should not be canceled and discharged of record, giving him thereby an opportunity to explain his protracted absence during his residence period, and to show, if he can, that such absence was a temporary one only, with no abandonment of the residence he had already begun.
I shall await your answer to this dispatch before making reply to the note from the ministry of foreign affairs, a translated copy of which is herein inclosed, in order that I may be governed by your views upon the question presented and the instructions you may be pleased to give. I have, etc.,
(Inclosure 1 in No. 93.]
Mr. Tripp to Count Kalnoky.
UNITED STATES LEGATION,
l'ienna, September 26, 1893. YOUR EXCELLENCY: The minister of the United States at Vienna regrets the necessity of again bringing before the honorable ministry of foreign affairs of Austria-Hungary the case of John Benich, concerning whom the esteemed note of Count Welsersheimb, of date June 23 last, was duly received at this legation.
The case being one occurring during the time of my predecessor, Col. Grant, and of which I have no knowledge except such as may be derived from the records