Mr. Francis to Mr. Frelinghuysen .
Vienna , February 5, 1885. (Received March 3.)
Sir: I have the honor to inclose herewith copies of communications transmitted by me to the Imperial and Royal minister of foreign affairs and translations of notes from Count Szögyényi in response thereto, together with some accompanying papers, in regard to the arrest by the military authorities at Krakau of Louis Feinknopf, a citizen of the United [Page 6] States, with a view of exacting from him service in the Imperial and Royal army.
The case may be stated as follows: Feinknopf, born at Krakau, Galicia, in 1860; emigrated to the United States in 1876; naturalized and declared a citizen of the United States April 3, 1882, by the United States district court for the southern district of Ohio; subsequently established residence in New York City; for first time since emigration visited his native place, Krakau, arriving there October 20, 1884; summoned by military authorities of that place to report for duty in the Imperial and Royal army October 23; claimed exemption from such service on ground of his United States citizenship, and in evidence thereof presented his certificate of naturalization; permitted to visit Vienna 26th of October to confer with United States minister, in whose hands he placed certificate of naturalization and other papers establishing facts as above stated.
In interview with Baron Pasetti, at foreign office, on the subject, October 27, I presented to him the papers bearing conclusive evidence in this case, and said that, in a matter so clear as to exemption from military conscription under the treaty of 1870 between the United States and Austria-Hungary, I hoped instructions would be promptly communicated to the proper authorities at Krakau to release Feinknopf from arrest as one owing service in the Imperial Royal army, and to erase his name from the rolls as owing such service. October 28, I addressed a note to Baron Pasetti, copy of which is herewith inclosed, carefully recapitulating the facts, and earnestly repeating this request. In an interview with him at the foreign office November 7, I called his attention to the fact that I had received no reply to my note of October 28, as above, and said that delay in this matter was embarrassing. He replied that the subject had been referred to the proper department and he would request a prompt decision thereon. Hearing nothing further on the subject, I addressed a second note to Baron Pasetti, November 21, copy of which is inclosed, pointing out that continued delay involved hardship and injustice toward a citizen of the United States who was entitled, under treaty obligations, to prompt release from the claim made upon him by the military authorities at Krakau. On the same day I had a personal interview with Count Szögyényi, first chief of section, ministry of foreign affairs, and presented to him Feinknopf’s naturalization certificate and other papers. He said there had been delay in this case because of unavoidable circumstances, but it should now have prompt attention. Still the delay was prolonged, and meantime Feinknopf wrote me that he was obliged to conceal himself at Krakau to avoid being forced into the army. November 29 I received first note from foreign office on this subject, translation of which is inclosed, saying the matter had been referred to the ministry of public defense with request of urgency. December 5 I again pressed Count Szögyényi in personal interview for a decision in the case. He replied that he was doing all that was possible to hasten this result, which could not be much longer delayed. I said to him that the proofs being conclusive it would seem that the relief to which Feinknopf was entitled should at once be granted to him.
The count replied that “we at the foreign office have to work through the ministry of war, and there is the delay.” I answered that I could only know the Imperial Royal Government in the premises as it was represented at the foreign office, and that I believed the war department did not make treaties. I was reassured that no effort would be spared to hasten a satisfactory conclusion of the question. But no result [Page 7] having yet been announced, I addressed a third note on the subject to Count Szögyényi, dated December 16, copy of which is inclosed, urging that answer be made to my request, and setting forth reasons which it seemed to me should have prevailing weight. Still no decision came, and on December 23 I again called upon Count Szögyényi, and immediately on meeting him he exclaimed: “This case of Feinknopf’s has given me more trouble than any affair I have had to deal with at the foreign office.” He said with emphasis that the ministry of foreign affairs agreed with me as to facts and conclusions, and that Feinknopf could not be held to serve in the Imperial Royal army, but it had been assumed elsewhere that there was not sufficient evidence to warrant his discharge. He then requested me to furnish him with Feinknopf’s naturalization certificate, which had been previously examined by both Baron Pasetti and himself and returned to me, saying he feared it had been their mistake not to have taken this certificate for the information of the ministry of war in the beginning. I handed him the paper, remarking that while recognizing his excellent intentions in dealing with the subject under consideration, I must respectfully insist upon an answer to my request in behalf of Feinknopf.
His excellency declared there could not be much longer delay. December 28 I received a note from Count Szögyényi (translation of which is inclosed), stating that delay was caused by objections of the Imperial Royal commander of the respective army corps, and that Feinknopf’s naturalization certificate (which had been presented by me at foreign office for information and use, if required, October 28, and on several subsequent occasions, and always returned after observation until December 23, when Count Szögyényi retained it, as mentioned above) would likely be the means of bringing the whole affair “to a speedy and favorable decision.” Delay still continued, however, and on 8th January, in interview at foreign office, I again earnestly pressed Count Szögyényi for quick decision, saying that such delay seemed unjustifiable. He replied that “we at the foreign office are doing all we can to hasten the decision.” Receiving intelligence from Krakau January 10, that Feinknopf had been arrested, placed in the barracks, and impressed into service as a common soldier, I addressed a note, January 10, to Count Szögyényi, copy of which is inclosed, strongly protesting in behalf of my Government against this proceeding, and requesting that Feinknopf be promptly relieved from his practical imprisonment.
January 10th I received a note from Count Szögyényi, translation of which is inclosed, announcing that the Imperial Royal military commander at Krakau had been ordered by telegraph to grant a furlough to Feinknopf, pending decision of the case. January 10th I sent a note to Count Szögyényi, copy inclosed, acknowledging above, and insisting that the discharge be unconditional. January 12th a note was addressed by me, copy inclosed, to same, with telegram from Feinknopf’s mother at Krakau of same date, stating that her son had not been furloughed. January 13th I received a note from Count Szögyényi, copy inclosed, stating that he had received a communication from the Imperial Royal ministry of war to the effect that an order had been sent by telegraph to the military authorities at Krakau, 9th instant, to liberate Feinknopf on furlough immediately.
January 14th note from same was received by me (copy inclosed), stating on authority of the Imperial Royal ministry of war that Feinknopf was liberated on furlough 9th instant, “As I was convinced from the beginning,” says Count Szögyényi. January 20th sent a note to the latter in reply (copy inclosed), with letter from Feinknopf, showing that [Page 8] he was arrested and placed in barracks January 8th, and was held as a common soldier until January 13th, when he was released on furlough, not “immediately”on 9th, as his excellency had been erroneously informed, also repeating, with earnest urgency, my request that he be discharged unconditionally from all claim to service in the Imperial Royal army January 22nd I received a note from Count Szögyényi (translation inclosed), announcing that the Imperial Royal ministry of public defense had, on the evidence presented, ordered the discharge of Louis Feinknopf “from the military service, by virtue of articles 1 and 2 of the treaty of September 20th, 1870.”
February 2nd I transmitted a note to Count Szögyényi (copy inclosed), acknowledging receipt of above, and informing his excellency that a letter received by me from Feinknopf declares that on 30th January he was informed at office of military authorities at Krakau the order for his discharge had just been received, and that five days more would elapse before the certificate could he delivered to him.
In this communication I also referred to the embarrassing delay in the decision of the case as attributable to no omission of mine in furnishing complete evidence from the beginning of Feinknopf’s exemption under the treaty from military service in the Imperial Royal army, and to correct erroneous inference that might possibly be drawn from his excellency’s allusion in his note of December 28th, to the naturalization certificate as having been left by me at the foreign office a few days prior to that time.
From this detailed statement and the accompanying correspondence, to which latter I invite your attention, it will be seen that for a period of nearly three months Louis Feinknopf, a citizen of the United States, owing no service to the Austro-Hungarian Government, nor accused of any crime, was subjected to annoyance and persecution, and finally to a deprivation of his personal liberty, by the military authorities at Krakau, unchecked by governmental power until the period of his release on furlough, January 13th, and his unconditional discharge as subsequently ordered, but which had not been executed up to January 30th; this, too, in violation of treaty obligations and after the facts and evidence were laid before the ministry of foreign affairs, proving that the military proceedings against him would involve a violation of the treaty of 1870, with resulting assault upon the personal liberty of a citizen of the United States. The ministry of foreign affairs never expressed any doubt as to Feinknopf’s exemption from military duty here under treaty; in personal interviews the fact was conceded. The unjustifiable delay which permitted the wrong to be done, with the aggravation of forcible arrest and impressment into service while the case was pending, was no doubt owing to the obstruction of military authority. But governments make treaties and are bound in good faith to execute the solemn agreements, allowing no departments within their own organization to retard or defeat their provisions to the injury of persons or property. It has occurred to me that, referring to this case as an example, it might be expedient for the Department, in the interest of American citizenship, to remind the Government of Austria-Hungary that such delay and wrongful proceedings as have characterized this case are inadmissible and afford reasons for serious protest. Awaiting instruction on this head, if instruction is deemed advisable by the Department.
I have, &c.,