Report by counsel to the Vienna
embassy on Austrian laws.
The qualification of an Austrian subject can be
attained:
- 1.
- By way of birth. The citizenship in the Austrian
States is inherent in the children of Austrian
subjects from their birth. (Sec. 28 of the Austrian
Civil Code.)
- 2.
- A female foreigner becomes an Austrian in marying
an Austrian subject. (Decree of the Imperial
Chancery, 23d February, 1833, No. 2,596.)
- 3.
- By an expressed investing a foreigner with the
rights of an Austrian subject. Sec. 30 of the Civil
Code.)
- 4.
- By accepting a situation in the public service.
(Sec. 29 of the Civil Code.)
- 5.
- By an uninterrupted residence of 10 years a
foreigner can obtain the quality of an Austrian
subject, provided that he has during this time not
suffered any punishment for crime, and that his
behavior was always respectable. Only on this
presumption such a foreigner is to be admitted to
take the oath of an Austrian subject. (Sec. 29 of
the Civil Code and Aulic Decree of 1st of March,
1833.)
- 6.
- In conformity with section 21 of the Patent, 24th
March, 1832, an Austrian subject who has, without
legal authorization, emigrated, and consequently
lost his rights as an Austrian subject, can be
re-established by the grace of His Imperial
Majesty.
The rights arising from the quality as an Austrian
subject cease:
- 1.
- In consequence of emigration, which can take place
with or without the authorization of the competent
authorities. (Patent, 24th March, 1832, No.
2,557.)
- 2.
- For females, on then: marrying a foreigner. (Sec.
19 of the Patent, 24th March, 1832, No.
2,557.)
Particular remarks.—It is nearly
impossible to give a distinct and coherent summary of
all the laws concerning the mode of acquiring the
quality of an Austrian subject, and the mode of losing
it. The first and systematic dispositions regarding this
matter are contained in the Austrian civil code. They
have, however, experienced in the course of time so many
alterations that the code can no longer be considered as
the principal scource regulating such matters. The above
cited laws, copies of which accompany this note, contain
most of the now existing rules. There are, besides, some
which exercise a certain influence on the subject, even
if they have not been issued with the intention to give
a new rule of attaining the quality of an Austrian
subject. So, for instance, the now existing law in
regard to trade does no longer maintain the distinction
between business requiring a regular domicile in a
certain place and other undertakings. Therefore the
establishing of a business requiring a regular domicile
can no longer be considered as a mode of acquiring the
quality of an Austrian subject. This is the more
accurate, as foreigners, according to this law, are
fully entitled to carry on [Page 1376] such business in this country without
undergoing any alteration of their quality as
foreigners. Further, the law concerning the communes
establishes the principle that any Austrian subject must
be a member of a community in the country. And as no
commune (gemeinde) can be compelled to receive a new
member against their will, it is a natural consequence
that a foreigner who is about to apply for the Austrian
citizenship must secure himself the reception in some
Austrian community, and that he cannot obtain the
citizenship itself without having secured an eventual
reception in such an Austrian community.
D. J. WINIWARTER.
Vienna
,
February 8, 1868.
[Inclosure 1.]
Code civil sec. 28.
On acquiert la jouissance complète des droits civils
par le droit de bourgeoisie,. Le droit de
bourgeoisie dans nos états héréditaires appartient,
par droit de naissance, aux enfants de tout
bourgeois autrichien.
[Inclosure
2.—Translation.]
Court Chancery Decree of
23d February, 1833, to all the Chief National
Authorities, in pursuance of the Imperial
Resolution of 26th
January, 1833.
His Imperial Royal Majesty has been pleased to
decide, in addition to the methods of acquiring
Austrian citizenship in the General Code of Civil
Law, and in accordance with section 32 thereof, and
with section 19 of the Emigration Patent of 24th
March, 1832, (I. G. S., No. 2,557,) that Austrian
citizenship may also be acquired by a foreign woman
through her marriage with an Austrian citizen.
[Inelosure 3.]
Code civil, sec. 29.
Les étrangers acquièrent le droit de bourgeoisie
autrichienne en entrant dans un service public, en
entreprenant une industrie dont l’exereiee exige un
domicile habituel dans le pays; par un séjour non
interrompu de dix années dans nos états, sous la
condition toutefois que, dans ce laps de temps,
l’étranger ne se sera attiré aucune peine à raison
d’un délit.
[Inclosure 4.]
Code civil, sec. 30.
On pent aussi, sans l’exercice d’une industrie ou
d’un metier, et avant l’écoulement de dix années, se
pourvoir aupres des autorités politiques pour
obtenir le droit de bourgeoisie, et celles-ci
pourront l’accorder suivant l’état de la fortune, la
capacité in-dustrielle, et la moralité du
demandeur.
[Inclosure 5.]
Abstract of an ordinance by
Francis I, Emperor of
Austria, respecting the emigration or expatriation
and unauthorized absence of his subjects from
their country, applicable to his German States, to
Lombardy and Venice, Dalmatia, Galacia, and
Lodomeria.
- I.
-
Emigration or
Expatriation.—Any Austrian subject who leaves
his own country for a foreign state without the
intention of returning is to be considered as an
emigrant.
- II.
-
Lawful
Emigration.—Those who wish to emigrate must
apply to the proper -authority to be released from
their Austrian citizenship. They must prove that
they are self-dependent, and in the free exercise
of their rights; they must state what members of
their family are to emigrate with them; prove that
they have all fulfilled their military
liabilities; and show that no hinderances exist in
regard to public duties. Should the application be
rejected, recourse may be had to the Privy
Council.
- III.
-
Unauthorized
Expatriation.—Those who go to a foreign
country without leave, with the expressed or
apparent intention to return no more, are to be
considered as unauthorized emigrants. Such
intention is shown by the acceptance of foreign
citizenship, or a foreign, civil, or military
office without special permission, by joining a
foreign religious institution or other association
out of the empire, requiring personal attendance;
by staying abroad for five years without having
property or business there requiring such absence,
and if the family and property of the emigrant be
withdrawn from the country; by staying abroad for
ten years without the previous conditions; by
non-obedience to a summons of recall to the
Austrian states, issued by the authorities. The
five and ten years’ periods are not applicable to
Austrian subjects residing in states with which
Austria has treaties of free emigration.
- IV.
-
The Effects of
Emigration.—Those who emigrate with
permission lose their character as Austrian
subjects and are treated as foreigners. Those who
emigrate without permission lose their rights of
citizenship, and are liable to all the legal
consequences of that loss; they lose the rank and
advantages which they held in Austria, and are
struck off-the registers; they can neither acquire
nor transfer property where this law-applies; any
previous testamentary dispositions with regard to
such property become void; their inheritances go
to the next heir after them. Their property is
sequestered without prejudice to the claims
thereon. Their children or descendants resident in
the State are suitably maintained out of the
sequestrated property. The net overplus goes to
increase the property, the whole of which reverts
to the heirs at the death of the expatriated
owners. In special cases the sovereign can allow
the children to enjoy the sequestrated
property.
- V.
-
The Children of Unauthorized
Emigrants.—Those who are born before sentence
has been passed against the father do not lose
their Austrian citizenship or their position
during their minority, nor for 10 years after
coming of age if the father be still living; nor
for one year after his death, if within the 10
years; nor for three years after coming of age if
the father die before they do so; and they enter
upon their full rights if they return to the
Austrian states within those periods. This favor
is also applicable to children sent to reside
abroad by an Austrian subject living himself in
the country. Such children are, however, to be
looked upon as foreigners if they have acquired
citizenship abroad, or if they do not claim the
reserved rights within the prescribed
periods.
- VI.
-
Female Subjects married to
Foreigners.—They lose the Austrian
citizenship on such marriage, and if they become
widows, can only regain it in the same way as any
female foreigner.
- VII.
-
Rehabitation.—Citizenship can only be
reconferred on unauthorized emigrants by
permission of the sovereign; but those who have
emigrated with permission may regain it in the
manner prescribed in the General Code of Civil
Law. Such regained citizenship is only available
in regard to subsequently acquired rights.
- VIII.
-
Unauthorized
Absence.—Subjects who go out of the state
without passports or permission, or who stay away
longer than the time fixed, are considered to be
absent without authority; and if they cannot
justify themselves they are liable for that
absence alone to a penalty of from five to fifty
florins, or imprisonment for from three to
fourteen days, and to double the amount)f fine and
one or more fast-days during the imprisonments, if
the absence continue for longer than three
months.
- IX.
-
Proceedings against
Unauthorized Emigrants.—The absentees are to
be summoned to appear within a certain time by
edicts duly promulgated in newspapers and in the
neighborhoods to which they belong. If they do not
appear within the appointed period proceedings are
taken against them in the civil courts by order of
the government, and their property is
sequestrated.
- X.
-
Proceedings against
Unauthorized Absentees.—The absentee is first
to be summoned by an edict to answer for himself
within three or six months, according to the
circumstances; he may justify himself during those
periods; if he does not, judgment is passed
against him by the competent court. Appeals are
allowed to the superior authority.
- XI.
-
Provisions applicable to the
proceedings in both cases.—If the absentee or
emigrant be accused of any criminal act,
proceedings are taken in the criminal court, and,
the civil proceedings are stayed meanwhile. The
judgment in the criminal proceedings is sent to
the civil court for its sentence on the absence or
expatriation. The sequestration is operative
during the criminal proceedings.
- XII.
-
Transitory
provisions.—Expatriation proceedings pending
at the promulgation of this ordinance are to be
adjudged according to it; but if former laws
awarded a milder punishment, that only is to be
inflicted. Sentences passed before the
promulgation of this ordinance remain in full
force.
The enactments of the general civil code, as well as
all military conscription and police laws applicable
to absentees or emigrants retain their full force
and validity; all other laws and regulations on the
subject are hereby annulled.
Vienna
, 24th March,
1832.
[Page 1378]
[Inclosure
6.—Translation.]
Court Chancery Decree of
1st March, 1833, to all the Chief Authorities of the
Country.
His Imperial Royal Majesty has been pleased to
command by supreme resolution of the eighth of
February 1833, that from henceforth Austrian
citizenship shall not be acquired by a foreigner
through an uninterrupted residence of full 10 years
in the countries for which the general code of civil
law is binding, until he shall have given the
requisite proof thereof to the chief national
authority of his last dwelling-place; shall have
taken the citizen’s oath, by order of that
authority, either to itself or at the proper
district court, and shall have received a
certificate of his having done so,
The foreigner shall not, however, be allowed to take
that oath until the aforesaid chief national
authority has been fully convinced that throughout
the said time, not only has he not rendered himself
liable to punishment for any crime, but that his
conduct has always been peaceful, obedient to the
laws and ordinances of the constituted authorities,
and well-mannered, and that by his demeanor and the
known tenor of his thoughts, he has never given any
real ground for suspicion or complaint.
On the other hand, those foreigners who have, on the
day of the publication of this supreme resolution,
already completed the 10 years’ uninterrupted abode
in the said countries, are to be allowed to
relinquish the Austrian citizenship thereby
acquired, by giving proof that they had no intention
of becoming Austrian citizens; this proof must,
however, be produced absolutely at the latest within
six months from the publication of this supreme
resolution, as after that time it will no longer be
allowed.
I.—Naturalization act of 1844.
[Omitted: the provisions of the
act of 1870(printed
ante) having been
substituted for it.]
K.—British diplomatic and consular circulars.
(Omitted.)
L.—Extracts from Mr. Vernon Harcourt’s letters.
(Omitted.)
M.—Report of the Committee on Foreign Affairs
concerning the rights of American citizens in
foreign states, in the House of Representatives,
January 27, 1868.
[N. B.—Reference for this
report is made to the documents printed by order
of Congress.]
N.—Naturalization statutes.
N. B.—The act of 1870, ante, is deemed to be ample to give a
knowledge of the present legislation of Great
Britain. It has not been thought necessary to
reprint this title.
