Mr. Gresliam to Mr. Tripp.
Washington , September 4, 1893 .
Sir: Your dispatch No. 13, of the 1st July last, in regard to the arrest of John Benich, a naturalized citizen of the United States for alleged liability to military service, has had my careful attention.
The facts are stated as follows: John Benich was born at Crikvenize, on the Adriatic shore of Croatia, in 1871; emigrated to the United States in 1885, at the age of 14; resided uninterruptedly in this country for seven years until October 5, 1892, when he was naturalized according to law, before the superior court of Cook County, at Chicago; soon afterwards accompanied his sick father to his former home in Austria; received a passport in due course from the U. S. Legation at Vienna, No. 379, April 15, 1893; and was arrested about May 16th, at Novi, in Croatia, and held for military duty. The case having been brought to the attention of the consular agent at Fiume, Mr. Gelletich intervened with the local authorities, particularly with the military recruiting commissioner at Fiume, before whom Mr. Benich had been brought. Mr. Gelletich was informed by the commissioner that “he does not recognize the convention of September 20, 1870, and neither the authority of the U. S. Consular officer.” The judicial authorities took the same extraordinary view; Benich was escorted to Pola to perform military service.
In answer to Col. Grant’s very clear statement of the case, in his note of May 21, Count Welsersheimb replied to you June 23 that John Benich had been enrolled in the navy, May 20, to serve for one year; that by telegraphic order from the Hungarian minister of defense 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 the place until full information is on hand relative to his citizenship in United States.”
By a later dispatch from Mr. Max Judd, the consul general at Vienna, dated July 10, it would appear that the awaited information, to which Count Welsersheimb adverts, was sought from Mr. Judd by the Bezirkvorstand (district chief) of Novi, on July 3d, and was furnished by Mr. Judd’s giving the date and number of Mr. Benieh’s [Page 24] passport, a paper which, with the original certificate of naturalization, had been in the knowledge of the Croatian authorities since May 17, when they were submitted in original and translation to the judge at Novi, without avail.
It is evident, on the facts as shown, that Benich is exempt from military service or penalty in Austria-Hungary under the provisions of the naturalization treaty with the United States of 1870, for his emigration at the age of 14 makes it impossible that his case could have fallen under either of the exceptions of Article II. The contemptuous refusal of the recruiting commissioner and the judicial authorities of Fiume and Novi to recognize the validity of that treaty can only be attributed to sheer ignorance, and it is not supposable that the Austro-Hungarian Government will fail to visit its severe displeasure on its officials who have thus thrown discredit upon the national good faith, or omit proper instructions to them to duly respect the treaty obligations of the Empire. A voluntary and frank expression of regret in this regard is also naturally to be expected.
The real grievance in the case is one to which attention has lately been called in several instances, namely, the refusal of the Austro-Hungarian authorities to accord respect to the passport, duly issued by the lawful agencies of the United States as prima facie attestation of the citizenship of the bearer, and therefore, of his treaty rights. I had occasion to notice a peculiarly dilatory and illogical phase of this matter in the recent case of Moerser, where the man, having been deprived of his citizen papers, to which no respect whatever was shown, was held to prove his American citizenship. In the present case, the passport and naturalization certificate of Benich have been equally disregarded by the judicial and military authorities, who seem to have been left free to take whatever course they chose, to independently ascertain the citizenship of the party.
In these, as in many other cases, the Austro-Hungarian officials appear to proceed on the intolerable assumption that a foreign passport is valueless as evidence per se, and that the true citizenship of an alien found within Austrian jurisdiction is to be ascertained by some independent municipal investigation having no regard whatever to international obligations. This assumption is wholly incompatible with the universally admitted doctrine that a state is the sole and ultimate judge of citizenship of its own dependents, and is, in its sovereign capacity, competent to certify to the fact. A passport, in the eye of international law, is one of the highest sovereign acts of a state, whereby it attests that the holder is a lawful citizen. In the nature of the case it must be assumed to be prima facie valid until shown to be otherwise. This Government can be satisfied with no less degree of respect in Austria-Hungary for its sovereign acts, than it shows in the United States for the like sovereign acts of Austria-Hungary.
This unassailable ground in no wise impedes the investigation and correction of fraud in matters of international citizenship. Should circumstances east a tangible doubt upon the identity of the holder of a passport, or impute to him fraud upon the naturalization laws of the country which has received him as a citizen, the fullest cooperation and redress is immediately at hand. The Government of the United States is as deeply interested as the Government of Austria-Hungary can be in reaching the truth in such cases. But reasonable ground should appear to impugn the solemn evidence borne on the face of a passport. The burden of proof is not to be arbitrarily shifted. It is neither incumbent upon the bearer to prove his citizenship by extraneous evidence at the will of the country of his sojourn; nor upon the [Page 25] certifying government to support its official attestation of the fact of the citizenship by collateral proof under the municipal requirements of another country.
The frequent recurrence of these vexatious denials, by the imperial and royal authorities, of the validity of United States passports calls for an immediate and sufficient remedy. We claim that they are, on their face, entitled to faith and credit. But should the Austro-Hungarian authorities have reason to believe that they are fraudulently held by others than the persons to whom they were lawfully issued, or that the holders have obtained naturalization in fraud of the laws of the United States, or claim privileges of citizenship not granted by the treaty of naturalization between the two countries, the facts should at once be brought to the notice of the Government of the United States through its accredited envoy in Austria-Hungary.
It may be that the Austro-Hungarian Government finds excuse for its procedure in the stipulations of the treaty of 1870. If so, this Government must contest that point. That treaty, being a contract between equal sovereignties, stipulates that five years’ residence in the territory of the one, coupled with naturalization, shall constitute full citizenship to be duly recognized and respected in the territories of the other. Naturalization is a sovereign attribute within the sole competence of the respective parties and each is competent to certify the fact under its own laws. By the laws of the United States a five years’ uninterrupted residence is essential to the lawful naturalization of all aliens, save minor children of naturalized parents (such children residing within the jurisdiction of the United States) and honorably discharged soldiers, which latter may be naturalized on proving at least one year’s residence.
While in these exceptional cases the Austro-Hungarian Government may rightly require the facts, there is nothing in the treaty which can authorize its ex parte municipal action to that end. It rests with the Government of the United States to certify those facts, upon request, if need be, and it is equally incumbent upon this Government to press no case where citizenship may be ascertained to have been conferred and the naturalized Austrian to have quitted the United States within the stipulated term of five years. As for the provisions of Article ii, they are clearly intended to authorize the respective governments to apply the penalties in certain specified cases, and the opportunity and obligation to prove the facts necessarily rest with the government which takes advantage of the right conferred. But the facts so to be shown are wholly distinct from any question of citizenship; for the returning offender may be punished according to Austro-Hungarian law for any of the specified acts of nonfulfillment of military duty before emigration, without impugning the validity of his subsequent naturalization in conformity with the laws of the United States.
It is hoped that the incident will have been satisfactorily terminated before this reaches you by the full release of John Benich; by the disavowal of the contempt shown by the Croatian authorities for the sovereign acts of the United States under our treaty with Austria Hungary; by a frank expression of regret; and by the adoption of measures to prevent the recurrence of so vexatious a class of questions and to dispose of any doubtful cases of citizenship by the cooperative action of the legation and the foreign office. Should this hope not be realized, this instruction will be your guide in pressing the matter further to a just and honorable agreement.
I am, sir, etc.,