No. 21.
Mr. Fish to Baron
Lederer.
Washington, December 24, 1872.
Sir: The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of the note which His Excellency the Baron Lederer addressed to him on the 21st day of November, and has given very careful consideration to the facts with reference to the nationality of Francois A. Heinrich therein set forth.
Baron Lederer brings to the knowledge of the undersigned, for the first time, the important fact that Heinrich had, on more than one occasion, availed himself of Austrian protection, and traveled as an Austrian subject under an Austrian passport.
This fact, in connection with the provisions of the treaty signed on the 20th of September, 1870, induced a reconsideration of the question, and of the opinion which had been expressed without the information conveyed by Baron Lederer’s note with regard to Heinrich’s nationality.
The whole question has been submitted to the examination of the Attorney-General, who is of opinion that, inasmuch as the treaty above referred to provides that citizens of either country (the Austro-Hungarian monarchy and the United States) who have resided in the territories of the other uninterruptedly for five years, and during such residence have become naturalized citizens of the other country, are to be treated as such; and while, as a general rule, a person born in this country, though of alien parents who have never been naturalized, is under the laws of the’ United States deemed a citizen of the United States, that the treaty clearly recognizes the right of an American citizen to change his nationality and become a subject of Austria.
Applying these views to the case of Francois Heinrich, the Attorney-General, in view of the statements in the note of Baron Lederer, that under the laws of Austria a foreign-born child of Austrian parents takes the nationality of the latter, and is regarded as an Austrian, and that Francois Heinrich has at different periods obtained passports from the Austrian government and traveled under their protection as an Austrian subject, taken in connection with the length of time during which he has resided in Austria, thinks these circumstances may be viewed as a sufficient manifestation of consent on his part, at those periods especially, to be a member of that nation; and that such consent co-operating with the law of Austria, to which reference has been made, (by which he says it would seem children of Austrian parents born abroad [Page 79] are naturalized at their birth,) and accompanied, moreover, by continued residence in that country, effected a complete change in his nationality from American citizenship to Austrian citizenship.
The Attorney-General concludes by saying, that, in view of all the facts and circumstances appearing in this case, he is of the opinion that, under the provisions of the aforesaid convention, Francois A. Heinrich should be held by the United States to be an Austrian subject, and treated as such; that he is not an American citizen, and consequently not entitled to protection from this Government.
Following this opinion of the Attorney-General, the undersigned has the honor in reply to the question addressed to him by Baron Lederer, in his note of the 6th of April last, to say that Francois A. Heinrich is not, and will not be, regarded as a citizen of the United States, so long as he remains within the jurisdiction of the Austro-Hungarian dominion.
The undersigned avails, &c.,