Mr. Foster to Mr. Grant.
Washington, July 23, 1892.
Sir: I have received your No. 284 of the 1st instant, with copies of correspondence relative to the intended expulsion of Leon Spitzer, a naturalized American citizen from Austria-Hungary.
Your course in this matter has been in entire accord with, the principles maintained by this Government in analogous cases, and your clear exposition and presentation of the law and facts involved leave little to add.
This Government can readily appreciate the irritation and resentment experienced by the Austro-Hungarian Government towards its former subjects who had acquired American citizenship merely to evade military duty and having secured immunity return to their former homes and sow dissatisfaction and dissension among the subjects of the Empire. Nor is the Government of the United States desirous to extend its protection to that class of persons who assume none of the duties of citizenship while claiming all of its privileges and benefits, and has expressed its readiness to consider any proposition which the Austro-Hungarian Government may make with a view to modifying the naturalization treaty of 1870.[Page 14]
But so long as the treaty remains in force the United States Government will insist upon a strict compliance with its terms, and after a careful examination of the case in point is reluctantly obliged to dissent from the views expressed by the Austro-Hungarian Government.
Leon Spitzer was expelled forever from the dominions of Austria-Hungary, as alleged by the Government of that country, in accordance with the provisions of Article ii, section 5 of the law of July 27, 1871, which reads as follows:
Aside from this, persons who are not domiciled within the territory in which this law is in force can he expelled from the entire territory or from part thereof, if their stay for reasons of danger to public order or safety is objectionable.
Although the right of a government to expel objectionable characters from its territory is no more denied than its right to enact any other laws or regulations of intra-territorial force which it may deem suitable or necessary, nevertheless, when such laws or regulations affect citizens of the United States, this Government expects that they be founded on the principles of reason and justice, and that they should not merely emanate from the will of an arbitrary power. Reasonable grounds therefore should exist and be made known justifying the expulsion of Leon Spitzer from the Austro-Hungarian Dominions.
I premise that as the case of Leon Spitzer does not come under the three exceptions specified in the naturalization treaty of 1870, he is in all respects and purposes on an identical footing with a natural-born American citizen.
The reasons alleged by the Austro-Hungarian Government for Spitzer’s expulsion and which I quote in full from the note of Count Welsersheimb for minister of foreign affairs, to you of the 10th June, 1892, are inadequate and inconclusive. He says:
The sentence is based upon the following facts:
Leon Spitzer, who went to America when he was 16 years old, was naturalized there in 1889, without previously having rendered his military obligations in this country, nor without first having obtained the consent to emigrate, as provided by the Austrian laws, although he was notified by the imperial royal consulate-general in New York, under date of July 16, 1887, by order of the magistrate of this city to report within six months to the military board of examination at Vienna, for the purpose of military duty.
Nor have any subsequent steps been taken by Leon Spitzer, or his father, Moritz Spitzer, to justify his son’s neglect or to make good his shortcomings. Not until the beginning of 1890, after having acquired naturalization in the United States, Spitzer returned to Austria and took up his permanent residence in Vienna.
The above named having therefore by avoiding to render his military duty and by taking up his domicile here, given a stimulus to actions tending to weaken the armed force of the monarchy. The minister of the interior adds that the dispositions made regarding Spitzer are fully based upon the provisions of the law and of article second of the treaty of September 20, 1870, because the expulsion of Spitzer, whose name was struck from the conscription rolls after his American citizenship had become evident, was not decreed as a punishment for nonfulfillment of military duty, but rather as a measure adopted by the authorities for the protection and in the interest of public order.
This alone must be regarded as a justifiable and legal act, irrespective of the fact that Spitzer, during his stay and since his return, was sentenced by decree of the court at Hietzing, dated August 16, 1891, for forging a public document and fined 15 florins for assault and battery. His expulsion for these reasons was perfectly legal and was demanded by public order and security.
The first paragraphs would seem to indicate that Spitzer was expelled for nonfulfillment of his military obligations, but the untenability of this position is admitted immediately afterwards when the minister of the interior states that his expulsion “was not decreed as a punishment for nonfulfillment of military duty but rather as a measure adopted by the authorities for the protection and in the interest of public order.”[Page 15]
The last paragraph alleges that Spitzer was convicted of forging a public document and was lined 15 florins for assault and battery as an additional reason for his expulsion.
But in the note of June 27 from Count Welsersheimb to you he states that “where expulsion is inflicted as a punishment, it must be provided for by the criminal laws.”
Spitzer was therefore by distinct admission not expelled for violation of his military obligations nor for the crime and offenses of forgery and assault, but purely as a preventive or precautionary measure, by the arbitrary degree of the Austro-Hungarian Government.
Had Spitzer been expelled for an action punishable by the laws of his original country committed before his emigration, including avoidance of or desertion from his military obligations, this Government would have no occasion to intervene. And this would be equally true had Spitzer been expelled by the judgment of a competent court for the alleged crime of forgery or perhaps the offense of assault.
As however he was expelled on the vague and indefinite ground of “the interest of public order.” and as no valid and explicit reasons in support of the order are alleged, your action in making a formal protest is approved by the Department.
I am etc.,