Mr. Tripp to Mr.
Gresham.
Legation of
the United States,
Vienna, July 1, 1893.
(Received July 21, 1893.)
No. 13.]
Sir: I beg leave to present, for the consideration
of the Deparment of State, the case of John Benich, and to ask for
instructions in the premises. I inclose herewith copies of all the
correspondence between the legation and the consul and consular agent at
Buda Pesth and Fiume, also the correspondence between this legation and the
imperial and royal ministry of foreign affairs at Austria-Hungary. From this
correspondence it will be seen, if the facts therein stated are true, that a
gross outrage has been perpetrated upon an American citizen, not only
without justification but without apparent excuse or reason for such hasty
and arbitrary action on the part of the Croatian authorities, to say nothing
of the contemptuous language used in reference to the national treaty and
the authority of the American consular agent who sought to intervene in
behalf of an American citizen traveling abroad under the protection of a
passport issued by proper authority and his certificate of naturalization
under the seal of his adopted country.
If the facts remain undisputed, this is not one of those cases which have
given this legation so much trouble in the past, where subjects from Austria
from 17 to 19 years of age, liable to military duty here and about to be
enrolled, have fled to America and remaining there just the required length
of time to become naturalized, have taken out their citizenship papers and
returned here to remain permanently, evading their duties as Austrian
citizens by committing a fraud upon American courts and the American
Government. In such cases this legation, as I find by examination of its
records, has not attempted to uphold the rights of such pseudo citizens, but in cases of palpable fraud when the rights of
both nations have been violated it has left the Government of
Austria-Hungary to take its own course and to deal with such persons as it
deemed proper, consistent with its own laws and usages in the given
case.
But this is an entirely different case. John Benich left his native Country
when he was a mere child, but 14 years of age. If a fear of future liability
to military duty entered into his motives for expatriation, it was too
remote to be a primary cause. He lived continuously in America for eight
years, and at the age of maturity became a naturalized American citizen. He
did not leave his adopted country to take up a permanent residence in his
native country after obtaining his certificate of naturalization, but he
left his employment at his adopted and permanent home on temporary leave of
absence, on account of assisting his sick parent, expecting and intending to
return again within a short period of time. On his arrival in his native
country, he is seized, in defiance of consular authority, in contempt of his
certificate of naturalization as an American citizen, in contempt of his
passport
[Page 16]
under the seal of the
legation of the United States, both of which were shown and translated to
the officers making the arrest, and in contempt of the provisions of the
solemn treaty between Austria-Hungary and the United States, whose
provisions were also read and clearly stated before his arrest was made, and
he is subjected to the indignity of being stripped of his citizen’s clothes
and forcibly put into the uniform of a common soldier of the country whose
allegiance he had renounced, and is put into military confinement and
subjected to military discipline for a number of weeks, among strangers and
out of reach of friends, consular or legation authority.
At last, after presentation of this matter to the imperial and royal ministry
for foreign affairs and the expiration of the long time usual in such cases,
the prisoner is released on parol, pending inquiry as to the bona fides of
his citizenship. There is no reason given for the arrest, no statement of
suspicious circumstances connected with the young man that led to such an
arbitrary action on the part of the officers at Croatia. The case made by
the legation in its application for Benich’s discharge is taken as confessed
by the imperial and royal ministry of foreign affairs by its silence on that
subject and in seeking as a reason for the delay in erasing his name from
the rolls that inquiry is to be made as to the genuineness of citizenship.
Common prudence would seem to dictate that before persons, claiming to be
American citizens, are arrested as owing allegiance to their native country,
the officers making such arrest should be informed of the exact ground on
which the arrest is made, not to make the arrest first and the inquiry
afterward. If Benich be a bona fide citizen of our country, a gross wrong
has been done him and an insult offered the nation of which he is a citizen,
and if he be not, and if his certificate be fraudulently obtained, the
courtesy existing between nations and the respect due to our own courts, who
issue certificates of naturalization, and to our department of foreign
affairs that issues passports to its citizens, should incline officers of a
friendly government acting under the provisions of a solemn treaty, to have
positive information of such fact before they attempt to deprive him of his
liberty and his rights as a citizen.
I have not yet replied to the last communication from the imperial and royal
ministry of foreign affairs. I am awaiting the result of final action in the
premises, and in the meantime I lay before you the correspondence, that you
may give me such advice as you may deem proper in the event Benich should be
finally discharged or held in military service as a citizen of
Austria-Hungary.
Inclosed please find copies of correspondence in this case, arranged in order
of time.
I have, etc.,
[Inclosure 1 in No. 13.]
Mr. Hammond to Mr.
Grant.
Consulate of the United States,
Buba-Pesth[, undated].
Sir: I inclose you copies of letters and
telegrams in the case of John Benich that have passed between this
consulate and the consular agency at Fiume. The ban of Croatia is
appointed by the Emperor, by and with the advice and consent of the
president of the ministry here, Mr. Wekerle. The latter is in Vienna,
and I can not see him so turn the matter over to you for your action.
The judge of Novi, in
[Page 17]
refusing
to recognize the treaty between this country and America is surely
asserting state rights with a vengeance, as some of those Croatians are
wont to do. I trust this case will teach him a wholesome lesson.
I await further instructions (if any) from you.
I am, etc.,
Inclosure 1 in inclosure 1 in No.
13.]
Mr. Gelletich to
Mr. Hammond.
Consular Agency of the United States,
Fiume, May 16,
1893.
Sir: To-day I received a telegram from Novi,
near Segna, where notice is given to me that John Benich, American
subject and naturalized citizen, in possession of passport No. 379,
Vienna, April 15, 1893, is arrested for nonfulfillment of military
service. The telegram is styled as follows: “Authority stopped and
arrested me for military duty; beg protection; they lock nie up for
eight days; do what you can for me. John Benich.”
I called at once to the governor of Fiume, and I showed to him the
telegram, asking the immediate liberty of the man. The governor of Fiume
replied to me that in political Croatian matters he can not mix himself,
being only the chief of the Croatian sea business; but he instructed me
to telegraph at once, without losing time, to the ban of Croatia, asking
the release of the man, and at once I forwarded the following telegram:
“His excellency, the Count Khuen Hederaary, ban of Croatia, Agram: John
Benich, American citizen, arrested for military duty; his papers in full
order, according to convention concluded between Austria-Hungary and the
United States, Articles I and II. I beg kindly to give order for the
release of said man.”
Now I am waiting for further news, which I will let you know at once, and
in case they will not release him I will telegraph you at once.
Yours, etc.,
[Inclosure 2 in inclosure 1 in No.
13.]
Mr. Gilletich to
Mr. Hammond.
Consular Agency of the United States,
Buda-Pesth, May 18,
1893.
Sir: On the 16th instant I reported to you the
arrest of John Benich, American citizen, for nonfulfillment of military
duty. Yesterday the said John Benich appeared in my office, stating that
he has been released. They served a notice upon him that he is liable to
trial and punishment, according to paragraph 44, Hungarian law, and that
he must present himself for the military recruiting. I instructed him
how he would have to conduct himself, assuring him that this consulate
will protect him, and he must not fear to become a soldier.
I am, etc.,
[Inclosure 3 in inclosure 1 in No.
13.—Telegram.]
Mr. Gelletich to
Mr. Hammond.
Consular Agency of the United States,
Fiume, May 20,
1893.
Hammond,
American Consul, Buda-Pesth:
John Benich, American subject, recruited as soldier; all my protest as
consul unavailing. Croatian authority do not want to recognize
convention 20th September, 1870. They keep him with soldierly force.
Please protest where necessary, and give me prompt instruction. Case
urgent.
[Page 18]
[Inclosure 4 in inclosure 1 in No.
13—Telegram.]
Mr. Hammond to Mr.
Gelletich.
Consulate of the United States,
Buda-Pesth, May 20,
1893.
Gelletich,
Consul, Fiume.
Inform me date of birth, emigration, naturalization, whether summoned
before emigration.
[Inclosure 5 in inclosure 1 in No.
13.—Telegram.]
Mr. Gelletich to
Mr. Hammond.
Consular Agency of the United States,
Fiume, May 21,
1893.
Born 1871; emigrated 1885; naturalized 25th October, 1892; passport dated
Vienna 15th April, 1893, No. 379; too young to be summoned before
emigration; to-day he leaves for Pola to be soldier. Urgent
protection.
[Inclosure 6 in inclosure 1 in No.
13.]
Mr. Gelletich to
Mr. Hammond.
Consular Agency of the United States,
Fiume, May 20,
1893.
Sir: This morning I sent you a telegram as
follows: (See No. 615.) Now I beg to explain that
this morning I went where the military recruiting were done, called by
the said John Benich asking protection; his passport was exhibited and I
protested that the man must not be touched, being under my protection as
American consul. The Croatian judge of Novi ordered the military force
to seize the man. My remonstrances were not heard. I recalled the
convention between Austria-Hungary and the United States dated September
20, 1870, and I had the reply that they do not recognize such a treaty,
and the American citizen, John Benich, was recruited as Austrian
soldier. He was to leave to-day for Pola, but I remonstrated, so he will
leave to-morrow at 4 o’clock in the afternoon. I beg you to protest
where necessary in behalf of the man, and in my behalf because my
authority as consular agent of the United States was not recognized by
the Croation judge of Novi, and in behalf of the man for being detained
in prison and deprived of his personal liberty, and increased
expenses.
Awaiting, etc.,
[Inclosure 2 in No. 13.]
Mr. Schlessing to
Mr. Grant.
Consulate-General of the United States,
Vienna, May 22,
1893.
Sir: Very respectfully referring to our
personal interview of yesterday in respect to John Benich, a naturalized
citizen of the United States, having been seized by the imperial and
royal authorities of Austria-Hungary in order to make him perform
military duty, I have the honor to herein inclose the following three
communications, as specified at foot of this, from the consular agency
at Fiume, and bearing on that subject; inclosure No. 3 also, containing
the request of the consular agent, Mr. Gelletich, that the Hungarian
authorities, and especially the Croatian judge of Novi, might be caused
to recognize Mr. Gelletich’s authority as U. S. consular agent.
I have, etc.,
A. Schlessing,
Deputy Consul-General.
[Page 19]
[Inclosure 1 in inclosure 2 in No.
13.—Telegram.]
Mr. Gelletich to
Mr. Schlessing.
Consular Agency of the United States,
Fiume. [undated].
John Benich, of Crikvenize, American citizen in possession of passport
dated Vienna, April 15, 379, held by the Croatian authority for military
recruit; my protest not recognized; convention 20th September, 1870,
also not recognized; telegraphed to ban of Croatia and have no reply;
reported four days ago to Consul Hammond at Buda-Pesth and telegraphed
to him this morning and I have no reply. Military force took him from my
hands; they want to forward him at once to Pola; he asks urgent
protection. Please protest against this illegal recruiting of an
American citizen. I am awaiting prompt instruction.
[Inclosure 2 in inclosure 2 in No.
13.—Telegram.]
Mr. Gelletich to
Mr. Schlessing.
Consular Agency of the United States,
Fiume. [undated].
Benich born in 1871; emigrated 1885; naturalized October, 1892; passport
dated Vienna, 15th April, 1893, No. 379. This afternoon they send him to
Pola. Will write tomorrow.
[Inclosure 3 in inclosure 2 in No.
13.]
Mr. Gelletich to
Mr. Schlessing.
Consular Agency of the United States,
Fiume, May 30,
1893.
Sir: To-day I forwarded to this
consulate-general the following telegram: (given on pages 11 and 12.) I
have done everything in my power to get him free, but the Croatian
authority denied to recognize my authority as consular agent. I
remonstrated to the governor of Fiume, and he replied to me that the man
does not belong to his district, so he could do nothing.
The case being urgent please protest on behalf of John Benich for his
expenses and for his liberty, and on my behalf for my authority not
being recognized as consular agent by the Croatian judge of Novi.
[Inclosure 3 in No. 13.]
Mr. Schlessing to
Mr. Grant.
Consulate-General of the United States,
Vienna, May 26,
1893.
Sir: I have the honor very respectfully to
refer to my communication respecting the seizure by the imperial and
royal authorities of John Benich, a naturalized American citizen, and
inclose herewith another communication on the same subject, which has
been sent by the consular agent at Fiume to this consulate-general.
I am, etc.,
[Inclosure in inclosure 3 in No.
13.]
Mr. Gelletich to
Mr. Schlessing.
Consular Agency of the United States,
Fiume, May 22,
1893.
Sir: In obedience to your telegram of yesterday
I beg to report as follows:
In the beginning of the month of April appeared in my office a man who
stated that he was born in Crikvenize in 1871; that he emigrated to the
United States in
[Page 20]
1885; that he
resided in Chicago, where he was naturalized American citizen on October
25, 1892, and produced his naturalization paper, issued by the superior
court of Cook County, at Chicago, on the above date; he said he had
accompanied home his old sick father, and being in a hurry had no time
to obtain a passport there, so he applied that a passport may be to him
granted.
After being satisfied that he is the man he claims to be, I filled his
application for the passport and forwarded it to Buda-Pesth. The
passport was granted him from the legation at Vienna on the 15th of
April, No. 379.
On the 16th instant I received a telegram from Novi from the said John
Benich, styled as follows:
“Authority stopped and arrested me for military duty; beg protection;
they lock me up for eight days. Do what you can for me.
John Benich.”
Soon as I received this telegram I called on the governor of Fiume and
asked him that the man must be released, being American citizen. He
excused himself that he would gladly do so, but Novi is not his
political district, and so he would not intervene, and instructed me to
telegraph at once to the ban of Croatia, the case being urgent.
I have done so, and at the same time I reported by letter the case to
Consul Hammond at Buda-Pesth, urging protection.
On the 17th instant the said John Benich appears in my office, stating
that he has been released, but the chief of the Croatian district of
Novi made him sign a paper where he states that he is an American
citizen, and in the same paper the said chief wrote that the said John
Benich is liable for trial and punishment for nonfulfillment of military
duty, according to paragraph 44 of the Austro-Hungarian law. The same
day I reported to Consul Hammond at Buda-Pesth.
Saturday, the 20th, the said John Benich was forwarded to Fiume to be
examined for military service; he was accompanied by the said chief of
the Croatian political district of Novi. I was summoned by the said
American citizen to protect him. Went where the examination was held and
asked the commission for the release of the man according to the treaty
stipulations, and thereby placing the said Benich under my protection as
consular officer of the United States in Fiume. The commission
hesitated. I protested against the illegal recruiting of an American
citizen. Then the chief of the Croatian political district of Novi
protested and ordered military force to seize the man and undress him to
be examined, saying that he does not recognize the convention of
September 20, 1870, and neither the authority of the U. S. consular
officer. After that I called to the post commander and to the district
commander, but nothing could be done; then I telegraphed to Buda-Pesth
and in the afternoon to you.
The man, John Benich, was escorted yesterday to Pola to get at once into
military service, and he requested me to protest against his illegal
recruiting and for having lost his personal liberty and encountered
expenses; sol beg you to protest where necessary in his behalf and have
him free as soon as possible.
I think I have done what a mortal man could to protect an American
citizen from the autocracy of one man alone, that is the chief of
political district of Novi.
I am, etc.,
[Inclosure 4 in No. 13.]
Mr. Grant to Count
Kalnoky.
Legation of the United States,
Vienna, May 21,
1893.
Your Excellency: I have the honor to inform
your excellency that I have just received a telegram from the U. S.
consular agent at Fiume, which contains the following information, viz:
That John Benich, of Crikvenize, a naturalized citizen of the United
States, is held by the Croatian authorities as a military recruit; that
neither the protest of the U. S. consular agent nor the provisions of
the convention of September 20, 1870, have been considered; that the
military force have taken John Benich from the hands of the U. S.
consular agent and are about to forward him to Pola; that John Benich
was provided with a United States passport and also with his
naturalization certificate.
For your excellency’s information I beg to say, that at this legation is
held the following record in regard to John Benich, viz:
Born at Crikvenize on or about the 3d of August, 1871, emigrated to the
United States, sailing from Bremen on or about the 10th of April, 1885;
resided uninterruptedly in the United States for eight years, from 1885
to 1893, at Chicago; naturalized a citizen of the United States before
the county court of Cook County, at Chicago, Ill., on the 25th of
October, 1892; permanent residence is Chicago, where he follows the
occupation of “barkeeper” (an attendant in, or a proprietor of, a liquor
shop);
[Page 21]
left the United States on
or about the 20th of March, 1893, and has visited Crikvenize since the
1st of April, 1893; says he intends to return to the United States
within six months.
In view of the statement made by the United States consular agent at
Fiume, that John Benich is “held as a military recruit,” and that the
military force have taken John Benich from the hands of the United
States consular representative at Fiume, I hasten to request that your
excellency will cause this United States citizen to be immediately
released from military service, and also cause an investigation to be
made into the facts leading to his arrest. I do not feel that the
Government of the United States would anticipate too much in expecting
that through your excellency’s kind and early action, the imperial and
royal Government of Austro-Hungary will cause prompt and ample
reparation to be made, should it be proven upon investigation that this
citizen of the United States has committed no crime which, justifies his
arrest, but that the local authorities at Crikvenize have arbitrarily
arrested him and forced him in the imperial and royal military service
in violation of treaty stipulations, and that at the same time these
local authorities have denied to a United States consular agent that
consideration which is due to an officer of a great and friendly
power.
Trusting that your excellency will kindly give this case your immediate
attention, I avail, etc.,
[Inclosure 5 in No.
13.—Translation.]
Count Welsersheimb
to Mr. Tripp.
Ministry of Foreign Affairs.
Vienna, June 23,
1893.
Sir: In the esteemed note of May 21, last, the
late U. S. minister at this capital, was pleased to communicate to this
ministry the recent arrest of the naturalized American citizen John
Benich and his enrollment in the imperial royal army, requesting
intervention in order that he be dismissed, that the circumstances
attending his case be ascertained and that the necessary further
measures be adopted.
The ministry of foreign affairs has not failed to institute at once the
necessary inquiries and is now in a position to make known to the
honorable envoy of the United States that it was found that John Benich
was born in Crikvenize in 1871; that he was enrolled in the navy on May
20, last, to serve for one year, and that by telegraphic order from the
Hungarian minister of defence he has been temporarily discharged from
active service, but that the final erasion of his name from the rolls of
the army and navy can not take place until full information is on hand
relative to his citizenship in the United States.
While the undersigned reserves to himself the privilege of making further
communications to the honorable envoy of the United States, as soon as
the investigations now in course of being made have been brought to a
close, he avails etc.
Welsersheimb.
For the Minister of Foreign
Affairs.
[Inclosure 6 to No. 13.]
Giov. Gelletich to
Mr. Tripp.
Consular Agency of the United States,
Fiume, June
27, 1893.
Sir: I beg to acknowledge the receipt of your
esteemed note of the 26th instant, and in reply I beg to state as
follows:
* * * * * * *
John Benich, United States citizen, was forced to swear fidelity to the
Emperor of Austria; after they had his forced oath he was placed under
military surveillance and after twenty-four hours forwarded to Pola for
immediate military service. Before they made him a soldier I requested
that until the necessary steps are taken and the right thing done to
leave him under my protection and warranted for him that he will not run
away; but I was not heard. Then 1 telegraphed at once to the United
States consul at Buda-Pesth and to the United States consul-general in
Vienna; particulars were reported with letters dated May 20, No. 440, to
Buda-Pesth, and
[Page 22]
with letter No.
441 to Vienna I requested further particulars. I replied with letter No.
442 to Vienna, dated May 22.
In this case I must appreciate very much the gentle manners of the
governor of Fiume, who regretted very much that this thing happened, but
he could do nothing, and could not intervene in another district; also
the post commander regretted very much that he could do nothing. The
imperial and royal marine corps district commander, as chief of the
commission for military recruiting in this district, assured me that the
men presented and conducted to him by the different district authority
must be examined and recruited, and that the entire responsibility in
this case rests upon the district authority of Novi, represented by the
judge who denied also to recognize the validity of the passport when
produced to him by the said John Benich.
Later I was informed that the said John Benich was released from
provisory arrest in Novi by order of the ban of Croatia, who ordered by
telegraph to the said district authority of Novi, to release immediately
the man, and the judge of Novi after a few days conducted him to Fiume
to be recruited.
On the 14th instant he was discharged temporarily from active service,
and now lives with his father in Crikvenize, near Novi. He is not under
arrest but I think he is secretly watched. The said John Benich begs
your kind consideration and hopes that he will be discharged, so that he
can return to his adopted country, and he claims damages and expenses
for his illegal recruiting. He fears that from his arrest he has lost
his employment in Chicago, as only a limited leave of absence was
granted him.
I beg, etc.,
[Inclosure 7 in No. 13.]
Mr. Hammond to Mr.
Tripp.
Consulate of the United States,
Buda-Pesth, June 28,
1893.
Sir: Your letter of June 26, 1893, in reference
to the ease of John Benich is received, and in reply will say that I
forwarded copies of all papers and telegrams to the legation and refer
you to my letters of May 22, No. 619, and May 26, No. 623. I beg further
to inform you that I have received a letter from the United States
consular agent, at Fiume, informing me that John Benich, who was seized
for military duty, was released, and to-day arrived clad in military
uniform. I presume he is at liberty, as he came from Pola to Fiume,
having been sent to the former place, before his release could be
effected. Will communicate with said consular agent at Fiume and find
out exact status of the man since his arrival in Fiume “clad in military
uniform.”
I am, etc.,
