« PreviousContinue »
· The chargé d'affaires ad interim of the United States of America has the honor to invite the attention of his excellency Count Kalnoky, imperial and royal minister of foreign affairs and of the imperial household, president of the council, to the inclosed copy of an order of expulsion addressed to Mr. Antonio Chirighin, a naturalized citizen of the United States.
“According to Mr. Chirighin's statement to this legation, he, an Austrian subject, left his country in 1868, emigrated to the United States, and after a residence of eleven years was naturalized and became a citizen of the United States.
“Having some family business to attend to at Merce, in the island of Brazza, Dalmatia, he returned to Austria-Hungary, apparently quite recently, as his passport is dated at Washington, July 26, 1886.
“ His conduct does not appear to have been in any manner subject to criticism, and his only offense, as your excellency will see by the inclosed order of the local authorities, seems to have been that he has availed himself of the privileges distinctly accorded to the subjects of Austria-Hungary by the convention between AustriaHungary and the United States of 1870 relating to naturalization.
“ The undersigned believes that on an examination of the subject his excellency the imperial and royal minister of foreign affairs will cause to be issued such instructions as will secure to Mr. Chirighin such hospitality and protection as is accorded by the United States to subjects of Austria-Ilungary visiting that country for purposes of business or pleasure, and such as will enable him to transact freely and fully that business which caused his visit to the province of Dalmatia."
Mr. Lee, chargé at Vienna, to Count Kalnoky, Sept. 25, 1886, For. Rel.
1887, 14. The order of expulsion reads as follows: " To ANTONIO ('HIRIGHIN, of Girolomo, Jerce: "As a result of the suggestion of the 3d of September, 1886, which con
tained four propositions, the I. and R. district captain decides to inform you that, according to the interpretation of the last line of Article II. of the state treaty of 20 September, 1870, B. L. I. 1871, No. 71, no penal procedure will be taken against you concerning
pour military (conscriptional) duties. • Considering, however, that the obtaining of the rights of American
citizenship does not exclude the idea (point) that it was but a subterfuge to release you from the duties of the conscription which were
imposed upon you by law as a citizen of Austria ; In view that the adoption of such a course might serve as a public
scandal and suggest to others to follow the bad example:
“ I, by these presents, invite you to take immediately the steps necessary
to reacquire your original (ancient) citizenship, and subsequently to present yourself voluntarily to answer the requirements of the law of conscription, or, on the other hand, to quit the countries represented in the councils of the Austrian Empire; to which end I name the 1st day of October of this year as the last day for your sojourn in those countries; this date having elapsed without your having departed, it will become my duty to proceed, out of respect for the public order, against you according to the fifth line of paragraph 2 of the law of July 27, 1871 (B. L. I. No. 88); that is to say,
I must proceed to your expulsion from the above-named countries. " The inclosed 38 soldi are the residue of the money paid by you in
advance for the purpose of telegraphing to the gendarmerie at San
“ The order of expulsion admits the fact of American citizenship, and, by giving the alternative of leaving the country or reassuming the former status of Austrian citizenship, seems also to admit not only that Mr. Chirighin has committed no offense against the laws of the Empire since his return, but that he is a desirable person to have as a citizen.
“His only offense appears, from these papers, to be that he became an American citizen without having fulfilled the obligations of the Austrian conscription laws, and returned to his former home.
“ The difficulty and delicacy of this class of cases arises from the undoubted legal rights possessed here by the chief local officers to decree, in the exercise of their police duties, the expulsion of any foreigner who disturbs, or who they believe will disturb, the public weal.
“ While I should not feel disposed to dispute the right of one government to expel the citizens of another country for cause, I do not see that we can accept as sufficient cause the doing of acts which our treaty provides shall be legal.
“ The order having been brought to my official notice, I deemed it proper to assert, in the broadest way, our treaty rights,
and I hope that the course pursued may meet with your approval.”
Mr. Lee, chargé at Vienna, to Mr. Bayard, Sec. of State, Oct. 4, 1886,
For. Rel. 1887, 13. Your course is approved by the Department." (Mr. Bayard, Sec. of State, to Mr. Lee, Nov. 3, 1886, For. Rel. 1887,
16.) “My action in the case as therein reported has resulted in the rescinding
of the said order of expulsion, I have informed Mr. Chirighin of the
Hugo Klamer was born in Vienna, Austria, in 1859, and came to the United States in 1873 at the age of fourteen. In 1883, when nearly twenty-four years old, he was naturalized. In 1885, owing to the advanced age of his father, he returned to Vienna. He was twice subsequently called upon to appear before the authorities as a fugitive from military service, but upon exhibition of his certificate of naturalization the proceedings against him were discontinued. In 1887 his father died and he and his brother undertook the settlement of their deceased parent's business. On January 15, 1889, the imperial-royal director of police issued an order under paragraph 323 of the penal code of 1852, directing his expulsion on or before the 27th of that month. When the case was brought to the attention of the Austrian Government, the imperial-royal foreign office stated that Klamer, before he was naturalized, had received three calls for military duty in Austria; that he was not, however, to be punished for nonfulfillment of military duty, but that his expulsion was * decreed on the ground of public order, a right which every government must reserve for itself." The foreign office adhered to this view, although the time of Klamer's expulsion was afterwards postponed till September 1, 1889. The Department of State expressed the opinion that under all the circumstances of the case, including Klamer's early emigration to the United States, his long residence there, and the object of his return to and residence in Austria, his expulsion was not justified, and the legation was instructed to bring the matter to the attention of the imperial-royal ministry for foreign affairs in that sense.
Mr. Lawton, min. to Austria-Hungary, to Mr. Bayard, Sec. of State, March
2, 1889, For. Rel. 1889, 21; Mr. Blaine, Sec. of State, to Mr. Lawton, March 22, 1889, id. 23; Mr. Lawton to Mr. Blaine, April 13, 1889, id. 24 ; Mr. Blaine to Mr. Grant, min. to Austria-Hungary, Oct. 8, 1889,
id. 27. In this, as in other and subsequent cases, the action of the Austro-Hun
garian Government was based, not upon any allegation of offence within the terms of Art. II. of the naturalization treaty of 1870, but upon the allegation that the individual did in fact leave Austria with a view to avoid military service and that his presence in that country was undesirable. (See Mr. Adee, Act. Sec. of State, to Mr. Hunter, April 12, 1895, 201 MS. Dom. Let. 480.)
David Hofmann was born in Bohemia March 21, 1864. In July, 1883, when nineteen years of age, he emigrated to the United States, where he became a naturalized citizen. Eleven years after his emigration he returned, in May, 1894, to his native country. Two months later, in July, he was ordered by the district authorities to leave the country within eight days " for reasons of public welfare," since it was “ contrary to public peace and order that persons who have evaded the military law in this manner should sojourn in this country.” The governor of the province, in dismissing an appeal from the order of expulsion, declared that the reasons given for the order were justifiable. Mr. Tripp, minister of the United States at Vienna, in reporting the case, said:
“My own convictions are very strong in this matter, that every nation has the right to bar its doors against obnoxious citizens of other nations for reasons which to itself may seem sufficient, without cause of complaint on the part of the nation whose citizen is thus debarred. We have assumed the right in case of China and in particular classes of cases in reference to the citizens of other countries. I am disposed to think the reasons that Austria-Hungary gives for closing her doors to former citizens who have openly evaded her military laws a good one. It is an undeniable fact that hundreds of young Austro-Hungarian citizens approaching the age of military service emigrate to America, and, remaining there just long enough to acquire citizenship, return again to their native country to permanently reside, resuming their former citizenship and allegiance to the Government in everything but its military laws. Many of these returned pseudo-Americans are loud in their defiance of the military power, and openly and shamelessly boast of their smartness in being able to enjoy all the privileges of a government without being obliged to share its burdens or responsibilities. The example of these ‘Americans' before the young men of the country, to say nothing of their teachings and boastful assertions of immunity, is pernicious and against public order and ready obedience on the part of the citizens to the necessarily harsh enforcement of the military laws of this Government. I have seen very much of these ‘American citizens during the past year. Many of them are married and in business here; they have no intention of returning to America; they own no property, and they pay no taxes in America; they have not even the ties of family or friendship to bind them to their adopted country; their citizenship is a' fraud, a fraud against their adopted as well as against their native country. In time of peace they burden us with their claims of loyalty; in time of war they deny their assumed allegiance and claim, by abandonment, a restoration of their civil rights to which they are entitled by birth."
Mr. Tripp, min. to Austria-Hungary, to Mr. Gresham, Sec. of State, Aug.
13, 1894, For. Rel. 1894, 30–32. The view taken by the Austrian Government of the general question, as
expressed in a note written to the United States legation in an analo
gous case, was as follows: “The expulsion took place in conformity with article 2 of the law of
July 27, 1871, because his 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 country may be considered as being inconsistent with public peace. In the present case the United States citizenship was obtained with the 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 Aus
trian 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 United States 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." (For. Rel. 1894, 35.)
The decision of the Department of State was as follows:
“ 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 return 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.”
Mr. Uhl, Acting Sec. of State, to Mr. Tripp, min. to Austria-Hungary,
Sept. 4, 1894, For. Rel. 1894, 36.
Gustav Wolf Louis Fischer was born in Saxony, July 14, 1868. On the death of his father his mother removed to Vienna, where he was naturalized as an Austrian subject, November 17, 1885. In March, 1888, he was notified to appear for military duty, but on examination was pronounced unfit for service. He then went to the United States, where, December 5, 1893, he was naturalized. March 2, 1895, he obtained a passport and returned to Vienna. Early in 1900 he was summoned before a district magistrate and ordered to be banished. From this order he appealed to the governor of Lower Austria. At this point the minister of the United States at Vienna interposed, and