He states that he arrived at that place on the 19th of August last. On the
afternoon of the 21st of the same month he was arrested.
The officer who made the arrest asked him why he had not presented himself
for the performance of military duty. Mr. Fisher replied that he was a
citizen of the United States, and bore as such a passport issued by this
Department. This passport he offered for examination, but such examination
was declined, and he was thrown into prison until the following day, when
his papers were examined and he was discharged.
Mr. Fisher alleges that at the time of his emigration he had not been
conscripted, and this being so, he was not subject under the treaty of
[Page 26]
naturalization between the United
States and Austria-Hungary of September 20, 1870, to any prosecution for
non-fulfillment of military duty. There would thus appear to have been no
ground for the action taken against him.
You are instructed to bring the case to the attention of the Austro-Hungarian
Government and ask that it be investigated. The proceedings of the
authorities at Wolfurt seem to have been hasty and unwarrantable, and to
have been taken without any examination into the facts of the case. Without
any other ground than the mere fact that Mr. Fisher had been an Austrian
subject it was not permissible to assume that because he had not performed
military service he had violated the military laws. Before arresting him
upon such au assumption care should have been taken to ascertain whether the
suspicion had any foundation, and his imprisonment under the circumstances
appears to have been unwarrantable.
[Inclosure 2 in No. 21.]
St.
Galle, Switzerland, August 24, 1889.
I, Frank Xavier Fisher, living at San Francisco, and now temporarily in
Europe, being duly sworn, do hereby depose as follows:
I was born at Wolfurt, district of Bregenz, Austria, on the 9th day of
August, 1849. I resided at Wolfurt until nineteen years of age, when, on
the 9th day of November, 1868, I left for the United States of America,
of which I subsequently became a naturalized citizen, in proof of which
fact I am now the holder of passport No. 8339, issued on the 26th day of
July, 1889, and signed by James G. Blaine, now Secretary of State of the
United States.
I left the United States on the 3d of August, 1889, per steamer Gellert, sailing from New York for Hamburg, and
arrived at Wolfurt, Austria, on the 19th day of August, instant, where,
on the afternoon of the 21st, I was arrested by the municipal gens
d’arme and thrown into prison. I was asked by said officer why I had not
presented myself for military duty at the time fixed by my conscription,
which took place after my emigration from Austria, and while I was in
the United States, and a knowledge of which conscription I did not have
until five or six years after it was made. I replied that I was a
citizen of the United States, bearing a formal passport, which I offered
to show, but which the authorities declined to examine. Without further
ceremony I was carried off to prison, and there kept, under
circumstances of great hardship and discomfort, until the following
morning, when I was brought before the authorities and my papers
examined. I was then released with the permission to either leave or
remain on condition of good behavior.
I do now further depose that I regard this treatment of me by the
authorities of Austria as wholly unwarrantable, unjust, and unusually
harsh, and as a violation of treaty obligations towards the United
States and of the principles of international harmony and usage. Having
emigrated from Austria before attaining the age at which I was liable
for military duty, I deny my liability thereto upon my voluntary return
to the country of my birth.
[Page 27]
I did not emigrate therefrom after having been drafted at the time of
conscription, and had not become enrolled as a recruit for service in
the standing army, nor did I emigrate while standing in service under
the flag, or during a leave of absence for a limited time, nor under a
leave of absence for an unlimited time; or belonging to the reserve or
to the militia, did I emigrate after having received a call into
service, or after a public proclamation requiring my appearance, or
after a war had broken out. I therefore hold, in accordance with
existing treaties between the United States and Austria, that having
transgressed none of the legal provisions on military duty referred to
in Article II, clauses 1, 2, 3, of the convention of 1870, concerning
naturalization, and ratified by the Governments of the United States and
Austria-Hungary on July 14, 1871, and proclaimed August 1, 1871, that on
my return to the latter country I could not be held subsequently to
military service nor remain liable to trial and punishment for the
non-fulfillment of my military duty.
In view of this arbitrary and severe treatment of myself by the
authorities of Bregenz, resulting in the most serious embarrassment,
discomfort, and delay to me, I would most earnestly and respectfully
hereby petition she Government of the United States to effect through
the proper channels a thorough investigation of the facts connected with
so grave an outrage against the rights and person of myself, an American
citizen, and to demand from the Government of Austria-Hungary a guaranty
against the repetition of such acts in future, and a full and practical
reparation for the grievous injury committed in my individual case. All
of which I do honestly and truly depose under oath and respectfully
submit.
In care of P. N. Kuss,
409 Thirteenth street, Oakland, California.
Sworn to before me this 24th day of August, 1889, at the consulate of
the United States at St. Galle, Switzerland.
[
l. s.]
W. Henry Robertson,
Consul.
