Mr. Tripp to Mr. Gresham.

[Extract.]
No. 92.]

Sir: Permit me to present for your consideration the case of David Hofmann, a former citizen of Austria-Hungary, now a naturalized citizen of the United States, expelled from this country by order of the district authorities at Prague.

You will find herewith the correspondence between Mr. Karel, the U. S. consul at Prague, and the district commander, as well as the decision affirming the decree of expulsion appeal to the government of the province, together with the correspondence between this legation and Mr. Karel.

It appears from the letters herewith inclosed that Mr. Hofmann was born in Bohemia, on the 21st day of March, 1864, and in July, 1883, at [Page 31]the age of of 19 years, he emigrated to the United States, where he became a naturalized citizen, and whence, after a residence there of eleven years, he returned to his native country, on or about May 15, 1894. Mr. Hofmann brought with him a certificate of his American citizenship and a passport from the State Department at Washington, which were exhibited to the proper authorities on his arrival in Bohemia. It does not appear from the correspondence what was the object of Mr. Hofmann in returning to Austria-Hungary, further than that Mr. Karel incidentally refers to it as being for the purpose of visiting his parents. Nor does the correspondence anywhere disclose how long a sojourn he intended to make in the country. About two months after his return, to wit, on the 8th day of July, 1894, Mr. Hofmann was served with a notice from the district authorities to leave the country within eight days, “for reasons of public welfare,” and for the further reason, given by the district captain in his note of July 11 to the U. S. consul at Prague, “because it appears contrary to public peace and order that persons who have evaded the military law in this manner sojourn in this country.”

From the decision of the district authorities Mr. Hofmann appealed to the governor of the province, which appeal was subsequently dismissed as not having been taken within the time allowed. An examination of the decision on appeal reveals the fact, however, that the governor did examine the case upon its merits, for after announcing the fact in his decision dismissing the appeal that it was not taken within the three days after sentence had been made known, he further adds, “Aside from this, the reasons for expulsion are Justifiable,” and we may therefore treat the decision on appeal as affirming the sentence for expulsion on the ground that it is contrary to public peace and order that persons who have evaded the military law sojourn in the country.

Mr. Hofmann has, I presume, left the country in obedience to the sentence of expulsion, as he would undoubtedly have been forcibly ejected had he declined so to do.

I have written to Mr. Karel, in answer to his request for the presentment of this matter to the foreign office, that I have submitted the case to the Department of State at Washington, and shall be governed by instructions received.

It will be observed that the authorities of Bohemia are careful to base their decree of expulsion, not upon the ground of the acquired citizenship Of Mr. Hofmann in America, nor do they in anyway deny the right of the former Austrian citizen, owing military duty to his native country, to become a naturalized citizen of the United States, and thereby evade such duty. By their action, on the other hand, they admit all we claim under the treaty in behalf of the naturalized citizen, to wit, the full right of expatriation and an exemption from punishment for nonfulfillment of military duty, unless he be at the time of emigration enrolled as a recruit in the standing army, or in actual service, or on leave of absence for a limited or unlimited time, or belonging to the militia or reserve, he emigrated after call into service, or after public proclamation requiring his appearance, or after war had broken out. The action taken by the authorities in Bohemia is sustained by the position taken by the foreign office, and is in accordance with the action of the district authorities in several cases in the past, against which former ministers, my predecessors, have mildly protested, but no question of tangible international importance has been definitely presented for your consideration.

[Page 32]

My own convictions are very strong in this matter, that every nation has the right to bar its doors against obnoxious citizens of other nations for reasons which to itself may seem sufficient, without cause of complaint on the part of the nation whose citizen is thus debarred. We have assumed the right in case of China and in particular classes of cases in reference to the citizens of other countries. I am disposed to think the reasons that Austria-Hungary gives for closing her doors to former citizens who have openly evaded her military laws a good one. It is an undeniable fact that hundreds of young Austro-Hungarian citizens approaching the age of military service emigrate to America, and, remaining there just long enough to acquire citizenship, return again to their native country to permanently reside, resuming their former citizenship and allegiance to the Government in everything but its military laws. Many of these returned pseudo-Americans are loud in their defiance of the military power, and openly and shamelessly boast of their smartness in being able to enjoy all the privileges of a government without being obliged to share its burdens or responsibilities. The example of these “Americans” before the young men of the country, to say nothing of their teachings and boastful assertions of immunity, is pernicious, and against public order and ready obedience on the part of the citizens to the necessarily harsh enforcement of the military laws of this Government. I have seen very much of these “American” citizens during the past year. Many of them are married and in business here; they have no intention of returning to America, they own no property, and they pay no taxes in America, they have not even the ties of family or friendship to bind them to their adopted country; their citizenship is a fraud, a fraud against their adopted as well as against their native country. In time of peace they burden us with their claims of loyalty; in time of war they deny their assumed allegiance, and claim, by abandonment, a restoration of their civil rights to which they are entitled by birth.

* * * * * * *

I have digressed somewhat, and at considerable length have attempted to give you a partial view of the position of the legation here in reference to these returning American citizens, and as the question is an important one, and one that must likewise trouble our ministers and ambassadors at other courts, I have thought proper to set forth the condition of affairs existing here somewhat at length, and I shall with pleasure modify any action that may have been taken, if deemed necessary, to bring myself in accord with the general administration of the State Department in reference to all foreign countries in which similar cases may arise.

I may further add, in reference to the treatment of naturalized Austro-Hungarian citizens returning to their native country, I have several times had occasion to ask permission for such citizens, even some who were liable to arrest and imprisonment under the treaty, to return for a brief visit to their parents and friends, and in every instance it has been cheerfully granted. From my observation here and my intercourse with the ministry of foreign affairs of Austria-Hungary, I am free to say that this Government has not only been very courteous, but has exhibited on every occasion a desire to fulfill with exactness the conditions of the treaties existing between the two governments in reference to expatriation and naturalization of citizens of either nation.

It is probable that something may have arisen in reference to David Hofmann during his two months’ visit in Bohemia that made his longer [Page 33]sojourn undesirable, for the remarks and conduct of all foreign citizens are under complete surveillance here. But in the case as it appears upon the record, the question is squarely presented, is it a sufficient reason for expelling a naturalized American citizen, that he has evaded the military laws of the country? If you say it is, and that this country has the right to declare what class of citizens are obnoxious and shall be prohibited from crossing its boundaries, that will end the matter. If you say it is not, I trust you will explicitly give me your views in referenced the course to be pursued in such cases; and in this connection be so kind as to lay down the rule of action that ought to govern in the renewal of passports of American naturalized citizens remaining indefinitely abroad.

I shall await your answer with much interest. In the meantime,

Permit me, etc.,

Bartlett Tripp.
[Inclosure 1 in No. 92.]

Mr. Karel to Mr. Tripp.

Sir: A citizen of the United States by the name of David Hofmann, who is a young man of about 25 years of age, came back to Bohemia to visit his father. After he had been home a few days the district authorities asked for his passport and its examination, and found it correct. A few days thereafter an official order (A) to quit the Austro-Hungarian Empire within eight days was served on him on the 8th day of July. On the 9th he appeared at my office and stated his case. In reading the order over, I found that it was issued under paragraph 2, which relates to vagrancy, and could not be applied to Mr. Hofmann, because he has sufficient means to support himself, lived with his friends, and did not molest any one. I therefore wrote on the same day to the district authorities (B), requesting an explanation. Answer (C) reached me on the 14th. In the answer they base their action under paragraph 45, relating to resistance (defense) law, which according to our treaty can not be applied to Mr. Hofmann.

He left Austria at the age of eighteen, before he was subject to military duty. If paragraph 45 would legally apply to him, he would be a deserter; then why do they not deal with him according to the law? On the 14th I wrote again to the district authorities (D), but to this date have received no answer. I advised Mr. Hofmann to appeal from the order of the district captain to the governor, and he notified me that he did so through Dr. Dieschner, an attorney at Pilsen. He also inquired whether he should leave Austria at the expiration of the eight days, and I told him to remain here and wait the result of his appeal.

Thinking that I would be able to adjust this matter without referring it to you, but failing, and it being a question of importance to naturalized American citizens, I therefore transmit the same for your consideration and action.

I am, etc.,

John Karel.
[Inclosure A in inclosure 1 in No. 92.]

The contents of these acts having been shown to David Hofmann, he produced two papers made out in English purporting to be proofs of his American citizenship. Thereupon he was told that for reasons of public welfare and according to paragraph 2 of the law of the 27th of July, 1871, he was to be expelled forever from Austria, and that he must leave within eight days or be escorted over the frontier under a guard.

salv. rex.

I take cognizance of the foregoing and request a copy of this sentence, wishing to appeal against it.

David Hofmann.

Certified to be a true copy.

Signature of the clerk of the court.

[Page 34]
[Inclosure B in inclosure 1, No. 92.]

To the District Captain at Mies:

Sir: David Hofmann, a United States citizen, appeared in my office to-day and showed me a copy of the note of July 8, received by him from the district captain at Mies, in which lie is ordered to leave the country within eight days. As this note does not give the reason why this measure was adopted, I beg leave to request to be informed why this order to leave the country was issued against this American citizen. I also request to be put in possession of the details of the case in order to form a clear conception of the facts to enable me to take the necessary further steps.

Requesting an early reply,

I am, etc.,

John Karel.
[Inclosure C in inclosure 1 in No. 92.]

To the Consulate of the United States of America,
Prague:

In reply to the esteemed note of the 9th of July, I beg to inform you that the former Austrian subject, David Hofmann, at present a naturalized citizen of the United States, is liable to military duty.

He went to America before he had reached the age which rendered him liable to military duty, and recently returned to this country. As the provisions of paragraph 45 will not be applied to him on account of his having acquired United States citizenship, it has been decreed that the above named be expelled by the police, because it appears contrary to public peace and order that persons who have evaded the military laws in this manner be allowed to sojourn in this country.

The I. and R. District Captain.
[Inclosure D in inclosure 1 in No. 92.]

To the District Captain in Mies:

Sir: I am in receipt of your answer stating the reason why D. Hofmann, a United States citizen, at present staying in Wenussen, near Tschkau, in Bohemia, was ordered to leave the country. It is said that this course was adopted in accordance with paragraph 45. I affirm, however, that this paragraph can not be applied to Hofmann’s case, for then he would be a deserter. I beg to call your attention to Article II of the treaty between the United States and Austria-Hungary of September 20, 1870. Hofmann did not leave Austria to avoid rendering military duty, but to find a new home. He arrived in the United States, lived there, and acquired citizenship. After some years he returned to his native country to visit his parents. At the time he left Austria he was not liable to military duty, nor did he leave as a criminal; therefore paragraph 45 can not be applied to him.

Accordingly I request the honorable captain of the district that the order of expulsion issued against David Hofmann be withdrawn, and that this decision be immediately communicated to me.

Should my appeal not be granted, I will be compelled to refer the matter to the legation of the United States in Vienna for further action.

Trusting to be favored with an early answer,

I am, etc.,

John Karel.
[Inclosure 2 in No. 92.]

Mr. Townsend to Mr. Karel.

Sir: I beg to acknowledge the receipt of your favor of the 18th instant, with inclosures A, B, C, and D, relating to the case of Mr. Hofmann, a naturalized American citizen, ordered to leave the country of his birth, said order being based on paragraph 2 of the law of July 27, 1871.

Sufficient time has hardly elapsed since July 14, the date of your statement of the case to the local authorities, for them to have investigated it and received instructions [Page 35]from headquarters. I shall, therefore, wait until I hear from you before presenting the case to the foreign office, especially as it will be necessary for me to have the following additional data, viz, the date and place of Hofmann’s birth, date of his emigration, date of his return, and his domicile prior to his emigration. I may add for your information and for the consideration of Mr. Hofmann, that it is extremely doubtful if the Government of Austria-Hungary will withdraw their order of expulsion, as they have carried into effect exactly similar orders in like cases in the past. I quote as follows from a letter received by this legation from the foreign office in a corresponding case:

“The expulsion took place in conformity with article 2 of the law of July 27, 1871, because his stay in Austria was considered inconsistent with public order.

“Not coining under the provisions of 1, 2, and 3 of Article II of the treaty of September 20, 1870, he was not on his return to Austria held to perform military service. The treaty has therefore not been violated, inasmuch as his United States citizenship was recognized.

“The above-mentioned treaty, however, does not deprive the imperial and royal government of the right to issue a decree of expulsion against any foreigner whose stay in the country may be considered as being inconsistent with public peace. In the present case the United States citizenship was obtained with the evident intention, or at least with the full knowledge of avoiding by so doing, the performance of the duties of an Austrian subject, under the protection of the treaty of September 20, 1870,

“The naturalization took place, therefore, when regarded from an Austrian legal point of view, doubtless in fraudem legis.

“The provisions of the Austrian military laws of October 2, 1882, were not framed until after the treaty of September 20, 1870, had been concluded. The result is, that the U. S. Government does not always judge the proceedings of the authorities here against former Austro-Hungarian subjects from the same point of view, however justified the measures may be, according to our laws.”

You will observe from the foregoing that the Austro-Hungarian Government reserves the right to exercise expulsion upon any foreigner whose stay in the country may be considered as being inconsistent with public order. To say that the stay of Mr. Hofmann is inconsistent with public order is doubtless stretching the point to its utmost limits, and upon this point must we base our claim.

Awaiting further details,

I am, etc.,

Lawrence Townsend.
[Inclosure 3 in No. 92.]

Mr. Karel to Mr. Townsend.

Sir: In compliance with your request of the 19th instant I wish to give you the following further information in the case of David Hofmann:

He was born March 21, 1864, at Dobraken, in Bohemia; emigrated to the United States in July, 1883; returned May 15, 1894. His domicile prior to his emigration was Wenussen, in Bohemia.

His appeal is pending, and I have received no further official information.

I am, etc.,

John Karel.
[Inclosure 4 in No. 92.]

Mr. Karel to Mr. Townsend.

Sir: The governor of Bohemia has dismissed the appeal of David Hofmann on the ground that he did not appeal within the time prescribed by law, namely, within three days. I am sorry; I would like to have heard the governor’s ruling on this question.

A copy of the decision is herewith inclosed.

I have written to Mr. Hofmann that under these circumstances he will have to leave.

Will you bring it before the imperial and royal minister of foreign affairs?

I am, etc.,

John Karel.
[Page 36]
[Inclosure in inclosure 4 in No. 92.]

decision.

To the District Captain at Mies:

The imperial and royal provincial government finds that the appeal of David Hofmann, domiciled at Ullitz, who acquired citizenship in the United States, made by him against decision of the court dated July 8, 1894, No. 12756, decreeing his expulsion from the kingdoms and countries represented in the Reichsrath, was presented too late, and dismissed because the appeal was not made within the lawful limit of three days after the sentence had been made known, and not until July 16, 1894.

Aside from this, the reasons for expulsion are justified.

According to paragraph 7 of the law of July 27, 1871, No. 88, no further appeal can be made.

The district captain will take the necessary steps to carry out the order for expulsion.

The supplements of the report of July 18, 1894, No. 13971, are herewith returned with the information that a copy of this decision has been transmitted to the U. S. consulate in Prague.

Prague, July 31.

Transmitted to the U. S. consulate at Prague with reference to the note addressed to the district captain at Mies and the appeal made by David Hofmann, presented in the esteemed note of July 14, 1894.

For the Governor of the Province.