Mr. Tripp to Mr.
Gresham.
United
States Legation,
Vienna, August 23, 1894.
(Received September 8.)
Sir: Referring to my dispatch No. 13, dated
July 1, 1893, and your esteemed reply No. 29, dated September 4, 1893,
in reference to the case of John Benich,1 I have
the honor to submit herewith the following
[Page 37]
correspondence between this legation and the
ministry of foreign affairs of Austria-Hungary, together with the
correspondence between this legation and Mr. Gelletich, the consular
agent of the United States at Fiume.
The case has become one of considerable importance, not only by reason of
the attention it has received from the press, both in Europe and
America, but on account of the principles of international law involved
in the construction of the treaty of 1870 between the two governments;
and it gives me great pleasure to announce that, notwithstanding it is
claimed on the part of the provincial authorities of Croatia that the
American citizenship of John Benich was procured by fraud, every
principle contended for in your dispatch No. 29 of September 4, 1893, to
this legation, has been conceded by the Government of
Austria-Hungary.
- First. It is conceded that the passport of the citizen of either
government, native or naturalized, not bearing upon its face the
insignia of its own invalidity, can not be called in question by the
municipal, district, and inferior officers of the government, but
that such paper is prima facie evidence of the facts therein stated
and must be respected as such. If the subordinate officers of the
government have suspicions of the fraudulent character of the paper
presented, they may report the fraud or irregularity alleged to some
tribunal, if any, having competent authority under the rules of
international law to determine the same.
- Second. That it is the duty of either Government, if its properly
constituted tribunal shall be satisfied that the certificate of
naturalization, upon which the passport was based, was fraudulently
or illegally procured, to present such consideration to the
Government granting the same with the request that an examination be
had and, if the fact be found that such certificate of
naturalization was fraudulently or illegally obtained, that it be
canceled and annulled.
- Third. That the arrest or detention of a citizen bearing a
passport of his Government, issued by competent authority, by a
subordinate officer of either Government, is a breach of the
courtesy due to a friendly nation, and a breach of official duty on
the part of the officer so offending.
- Fourth. That consular and other representative officers of the
Government of the United States have the right to intervene for the
protection of American citizens so unlawfully arrested, and a
refusal to permit them so to do by such officiating subordinate
officer, or the use of offensive or contemptuous language by him in
reference to the Government of the United States, its
representatives, or the treaty stipulations existing between the two
nations, not only subjects the guilty party to censure and
reprimand, but such conduct is an offense against the laws of
Austria-Hungary, which may be tried and punished as such.
The precedent established by this case is an important one and will save
this legation and the Government of the United States much annoyance in
the future from the assumed right arrogantly asserted on the part of the
district officers throughout the provinces of Austria-Hungary to
summarily pass upon American passports and to determine by ex parte evidence, which the bearer is wholly
powerless to refute, the validity or invalidity of a solemn document
under the great seal of the National Government and founded upon the
solemn decision of a court of record. The instructions which were issued
by the governor of Croatia to the subordinate officers of that province
have in effect also, as I am informed, been issued to the district
officers of other provinces of Austria-Hungary, so that in the future we
may confidently
[Page 38]
expect that
travel by American citizens in Austria-Hungary will not be subject to so
frequent and annoying interruptions on the part of the local authorities
as in the past. In fact, since the reception of my note of September
last by the foreign office, a perceptible improvement has been observed
at this legation, and the positions taken therein, founded upon your
esteemed dispatch, have evidently been the basis of the action of the
honorable imperial and royal ministry of foreign affairs of
Austria-Hungary in determining the individual cases which have
intermediately arisen and been decided by the same.
It gives me great pleasure to say that there is no ground for complaint
as to the treatment of American citizens in the past by the national
authorities of Austria Hungary. It has been uniformly kind, and
considerate. Every case presented to the foreign office has been
satisfactorily determined, and in a manner not only conciliatory and
courteous, but with an apparent desire to give to the existing treaty as
to naturalization of citizens a fair and liberal interpretation.
The only question in this case, which is now open and requires
consideration by you, is the claim made by the Croatian authorities that
the certificate of naturalization issued to Benich was fraudulent and
illegal and should be canceled.
I have read the facts found by the Croatian authorities and I can but
conclude that they have proceeded upon a too narrow and an erroneous
interpretation of the terms of the treaty under which they claimed to
act. They seem to conclude, and in such conclusion the foreign office
seems to concur, that the five years’ residence provided for in the
treaty means actual uninterrupted bodily presence of the applicant for
the period prescribed. Such an interpretation would make the accidental
or ignorant crossing of the boundary line of the nation, even for the
moment, a suspension of his inchoate right and require a new inception
of the probation period. I can not subscribe to such a narrow and
unnatural construction of the language of the treaty. I take the terms
“have resided” and “residence” to mean something more than mere personal
presence; they are intended to have the larger and more natural
definition which carries with it the idea of a fixed and permanent
abode, an abiding place selected with the animus
manendi on the part of its owner or possessor. The agent of our
Government, in drafting or consenting to the phraseology used in the
treaty, which is attested by his name, must presumably have had in mind
the existing laws of his own Government in reference to the
subject-matter of the treaty itself. This is indicated by the period of
time required as to residence being the same as that in case of ordinary
naturalized citizens of the United States, and the entire phraseology of
the section is not unlike that used in the amended statute of 1870,
enacted about two months prior to the conclusion of this treaty. That
act required that “no alien shall be admitted to become a citizen who
has not for the continued term of five years next preceding his
admission resided within the United States.” (U. S. R. S., § 2170.) The
language of the treaty is: “Citizens of the Austro-Hungarian monarchy
who have resided in the United States of America uninterruptedly at
least five years” and have become naturalized, etc., shall be treated as
citizens, etc. Both use the term “resided.” The one requires that he
reside for a continuous term and the other that he shall have resided
uninterruptedly. If there be a difference in meaning, it must be
admitted that the statute is more rigorous in its requirements as to
residence than the treaty. It could more plausibly be argued that the
continued term of five years was broken by personal absence than that
[Page 39]
his residence was
interrupted thereby. It will be remembered, however, that Congress gave
a legislative construction to this legislation by striking out from the
original act of 1813 the words “without being during the said five years
out of the territory of the United States,” the courts having held under
the old statute, as they were obliged to do, that personal absence,
though temporary, interrupted the running of the statute. After the
amendment so made in 1848, however, the courts have been unanimous, so
far as I am informed, in holding mere personal presence not
indispensable, and that mere temporary absences, unaccompanied by
changes of abode, habitation, or intention, do not interrupt the
probation of the alien.
It will be observed that if this be the proper construction to be given
the treaty, the voluminous testimony taken by the authorities of
Croatia, at an expenditure of so much time and the exhibition of so
great diligence, has but little bearing on the case itself, for if it be
established that young Benich returned to Croatia for a temporary visit
to his parents, with the fixed and continuing intention of returning to
his home in Chicago, the acts proven by the numerous witnesses would not
be in conflict therewith. He might, without abandoning his residence,
witness baptisms, attend marriages, arrange balls, and even receive
passports from Austria-Hungary, if he found it necessary to visit Bosnia
and Herzegovina. He was not yet a citizen of the United States; he was
still a citizen of Austria-Hungary, and the latter alone could grant him
such a right. With due respect, it seems to me that no fact enumerated
in the findings of the court, except the unexplained absence of Benich
for so long a period of time, tends to show an interruption.
Should you, however, concur in the apparent interpretation of the treaty
by the authorities of Austria-Hungary, you will, without doubt, take
immediate steps to have the certificate of naturalization of Benich
canceled and annulled. But should you, on the other hand, agree with me
in my construction of the language therein employed, I am impelled to
ask you to request the superior court of Cook County, Ill., to require
Benich to show cause why the certificate of naturalization should not be
canceled and discharged of record, giving him thereby an opportunity to
explain his protracted absence during his residence period, and to show,
if he can, that such absence was a temporary one only, with no
abandonment of the residence he had already begun.
I shall await your answer to this dispatch before making reply to the
note from the ministry of foreign affairs, a translated copy of which is
herein inclosed, in order that I may be governed by your views upon the
question presented and the instructions you may be pleased to give.
I have, etc.,
[Inclosure 1 in No. 93.]
Mr. Tripp to
Count Kalnoky.
United States Legation,
Vienna, September 26,
1893.
Your Excellency: The minister of the United
States at Vienna regrets the necessity of again bringing before the
honorable ministry of foreign affairs of Austria-Hungary the case of
John Benich, concerning whom the esteemed note of Count
Welsersheimb, of date June 23 last, was duly received at this
legation.
The case being one occurring during the time of my predecessor, Col.
Grant, and of which I have no knowledge except such as may be
derived from the records
[Page 40]
of
this office and the report of consuls, I had hoped the unpleasant
occurrence would have terminated in the prompt erasure of the name
of John Benich from the rolls of the army and navy of
Austria-Hungary, with such apologies and reparation on the part of
the offending officials as the gravity of the case would seem to
demand and the apparent disrespect shown to a friendly sovereign
power might lead my Government to reasonably expect. From a careful
reading of the record of this case, and governed by my knowledge of
the apparent desire and prompt action always exhibited on the part
of the honorable imperial and royal ministry of foreign affairs of
Austria-Hungary in protecting the rights of American citizens within
its jurisdiction, I am indubitably led to the conclusion that some
misunderstanding of the real facts of this case has misled the
honorable minister in his action, or rather the nonaction of the
foreign department, in failing to give this matter the attention
that its apparent gravity deserves. I am assured that no difference
of opinion can arise as to the legal questions involved or as to the
rights of the respective governments under the treaty of 1870 in
reference to naturalized citizens and the immunities and protection
which such citizens are entitled to claim from the nation in which
they may have their temporary domicile.
The facts in the case of John Benich, stated briefly but more
specifically than in the letter of my predecessor, Col. Grant, are
as follows:
Benich was born in the province of Croatia, Austria, in 1871; in
1885, when not quite 14 years of age, he emigrated to the United
States, and took up his residence in the city of Chicago. He
continuously resided in the United States until he became of age (21
years), when, upon his application, on the 5th day of October, 1892,
before the superior court of Cook County, Ill., in the city of
Chicago, he was admitted to citizenship; in the spring of 1893 he
accompanied his sick father to Vienna, Austria, intending to return
immediately to his home in Chicago. At Vienna, on the 15th of April,
1893, he received from the United States legation a passport in due
form, having made proof of the above facts to the satisfaction of
the American minister at that legation, which passport is numbered
379. At Novi, in Croatia, on the 16th day of May following, he was
arrested by the military authorities and held for military duty. He
immediately appealed to the U. S. consular agent at Fiume, Mr.
Gelletich, who intervened in his behalf, and who translated into
their own language and read to the military authorities who held
Benich in arrest, and to the judicial authorities before whom he was
brought, both his certificate of naturalization and his passport;
but instead of respecting these papers or releasing him from arrest,
they forcibly stripped him of his citizen’s clothing and put upon
him the uniform of an Austrian soldier, and to the gentlemanly
protest of the American consular agent they made the contemptuous
reply that “they did not recognize the convention of September 20,
1870, nor the authority of the U. S. consular officer.” Benich was
immediately enrolled and sent forward to active service as a soldier
in the Austrian army. Mr. Gelletich, the U. S. consular agent at
Fiume, reported these facts to the U. S. minister at Vienna, Col.
Grant, who immediately addressed the honorable imperial and royal
ministry of foreign affairs of Austria-Hungary his note of May 21,
and to which Count Welsersheimb, for the imperial and royal minister
of foreign affairs, was pleased to reply by his esteemed favor of
June 23.
I nowhere find in the records that the contemptuous language and acts
of the officials at Novi have been brought to the notice of the
honorable ministry of foreign affairs, and I am assured that such
conduct on the part of provincial authorities toward the
representatives of a foreign and friendly government and such open
disrespect of the solemn contract and treaties of sovereign nations
will be promptly visited with the condemnation it deserves. The
passport of a sovereign government, issued to one of its citizens,
is the exercise of one of its highest national prerogatives, and
such paper carries upon its face the implied assumption that its
bearer will be treated with that international courtesy and respect
which the citizens of the visited country have the right to expect
and demand in return. The doctrine of expatriation between the
friendly Governments of Austria-Hungary and the United States has
been set at rest by the solemn compact entered into between the two
great nations on the 20th day of September, 1870. The right of
naturalization of the citizens of the respective governments has
been definitely provided for by the terms of the treaty itself.
Under its provisions any or every citizen of the one government can
become a citizen of the other by residing therein for the period of
five years and complying with the conditions of the naturalization
laws of the respective government, reserving on the part of such
government only the right to punish the former citizen for offenses
committed by him against the government of the native country before
expatriation began.
It will not be contended that Benich, who expatriated himself at the
infant age of 14, could have been answerable for any offense against
the military laws of his native land under the provisions of this
treaty, nor is any criminal offense alleged against him that could
possibly have led to a military arrest. It will hardly be contended,
nor can the Government of the United States for a moment admit, that
[Page 41]
the provincial
authorities of Croatia had any right to pass upon the question of
the citizenship of Benich. In the most solemn form known to American
law a high court of judicature has by its judgment passed upon the
facts which determine his right to American citizenship, and of such
force and effect is this judgment of our courts that the Supreme
Court of the United States has said it is entitled to the same
respect as other judgments of courts of record, and that it must be
so observed until vacated or reversed by a court of superior
jurisdiction; and no less an authority than the late Hamilton Fish,
former Secretary of State, has held such judgment absolutely binding
upon the political departments of our own Government. But whether or
not such judgment be binding upon the political departments in a
case where fraud may have been employed in its procurement, it is
submitted that when the passport carries upon its face no indicia of its own invalidity it is prima
facie valid and should be respected as such by the nation that
issues it and by the authorities of the nation to whom it is
presented; that whatever may be the ultimate right of the foreign
nation to inquire into the fraudulent character of the instrument
itself, it can only be done by the tribunal of a national character,
governed by and subject to the jurisdiction of international law.
Neither municipal authorities nor provincial officers should be
permitted to determine or set in motion an inquiry directed toward
the discrediting or annulment of papers issued by a friendly nation
in solemn form, under its national seal, and by authority of its
highest department of state. It is further submitted that the nation
which has passed upon the question to be determined is the final
arbiter of the matters involved in such deliberation, for no higher
power exists by which its determinations can be modified or
annulled, and in case such determination should be found to be at
variance from the views or findings of the other nations interested
therein, the final determination of the disputed question would be
one of international concern, to be finally determined as such
questions must be—between the nations themselves. If one nation has
passed upon and determined a question in which the other has or may
have an interest, such as the citizenship of one of its subjects,
and the nation whose interests are injuriously affected by such
decision is of the opinion that it was procured or is being used in
fraud of its own national rights, a suggestion of such fact to the
nation by whom it was made would place in motion a courteous and
effective remedy by which the error could at once be corrected and
the dignity of the two nations concerned be maintained, without
endangering the amicable relations existing between them; for it
will be presumed that the nation upon whom a fraud has been
practiced would be as anxious to correct the error and punish its
author as the other party could possibly be. It is also submitted
that the passport is and must be treated by the municipal
authorities of the friendly nation to which it is presented, as
absolute evidence, when fair upon its face, of the facts which are
recited therein; that neither its bearer nor the government by which
it is issued can be called upon by the inferior and municipal
authorities of the government to which it is presented to
corroborate by additional and extraneous evidence the ultimate facts
which have been passed upon and determined in this most solemn and
judicial form. It is believed that this is not only the view
universally taken of this question by the civilized nations of the
world in their relations with each other, but it is the position
taken so emphatically and uniformly by my own Government that I
should feel I were derelict in my duty as its representative did I
not firmly but courteously insist that the municipal authorities of
Croatia must learn to observe and respect the passports of American
citizens, and that they be held responsible for injuries sustained
through their unwarranted and unlawful arrest of persons bearing
such papers. Said Mr. Frelinghuysen, former Secretary of State, in
reply to the assumed authority of the Mexican officials to pass upon
the validity of certificates of naturalization: “The assumption of
the Mexican Government of a right to inspect and decide upon the
validity of certificates of naturalization issued by the numerous
courts in preference to receiving the proofs afforded by a passport
of this Department must be regarded as wanting in proper courtesy to
the government of a friendly power.” (2 Whart. Int. Law, 480, §
195.)
Mr. Evarts, one of the ablest lawyers who has ever filled the chair
of the Secretary of State at Washington, states the proposition more
emphatically, denying the rights of the authorities to demand an
inspection even of the naturalization paper of a citizen who bore
the passport of his Government. He says: “The pretension of that
Government to ignore the passport of this Department and to require
an inspection of the certificate of the naturalization of an alien
can not be acquiesced in. You will distinctly apprise the minister
of foreign affairs to that effect, and will add that this Government
will expect to hold that of Mexico accountable for any injury to a
citizen of the United States which may be occasioned by a refusal to
treat the passport of this Department as sufficient proof of his
nationality.” (2 Wharton, Int. Law, p. 480, § 195.)
It is believed that no new doctrine of international law is announced
in the above questions, and it is confidently expected that the
position taken by this legation will be conceded by the honorable
ministry of foreign affairs of Austria-Hungary as the
[Page 42]
one that must govern all
friendly nations in their relations with each other. And it is
intended that the views expressed in this note may be taken as
applying also to other cases pending before the foreign office, for
not only Croatia but several other provinces of Austria-Hungary seem
to arrogate to themselves the right of passing upon the
naturalization of American citizens temporarily staying in their
locality, and of determining by evidence dehors the record of the passport and certificate of
naturalization, the ultimate facts which affirm or deny the validity
of the papers themselves. This note is therefore written with the
assumed confidence that the honorable imperial and royal ministry of
foreign affairs of Austria-Hungary will immediately cause any
investigation now being had before the local authorities of Croatia
to be abandoned and dismissed, that any information which has been
received by the honorable imperial and royal minister of foreign
affairs, and which has raised in his mind a doubt rising to the
dignity of a suspicion as to the validity of the certificate of
naturalization borne by Benich, may be reported to this legation, to
the end that the Government of the United States, from whose State
Department such papers were issued, may direct a proper
investigation to be made, and the fraud, if such has been committed,
be punished as it deserves; that the local authorities of Croatia be
required to make proper reparation to Benich for such injury as he
may have sustained through their lawless and unwarranted action; and
that such further action may be taken in the premises as will in the
future prevent the frequent occurrence of these arrests of American
citizens, bearing American passports attested in proper form, while
temporarily remaining within or passing through the provinces of
Austria-Hungary.
Taking this occasion of extending personally my thanks, as well as
the high appreciation of my Government, for the prompt and
considerate action taken by the imperial and royal ministry of
foreign affairs of Austria-Hungary in protecting the rights of
American citizens within its jurisdiction in the present cases
before it,
I beg, etc.,
[Inclosure 2 in No. 93.]
Mr. Hüning to
Mr. Gelletich.
U.
S. Legation,
Vienna, February 17,
1894.
Sir: Referring to previous correspondence
on the matter of the arrest of John Benich, a naturalized citizen of
the United States, for alleged violation of the military laws of
Austria-Hungary, I beg leave to inform you that the U. S. minister
directs me to inquire whether anything further has come to your
knowledge respecting his case, whether he is still in Austria, or
any other information which you think likely to be of interest to
learn.
I am, etc.,
[Inclosure 3 in No. 93.]
Mr. Gelletich
to Mr. Tripp.
U.
S. Consular Agency,
Fiume, February 20,
1894.
Sir: I beg to acknowledge the receipt of
your favor of 17th instant referring to John Benich, a naturalized
citizen of the United States, for alleged violation of the military
laws of Austria-Hungary. I have the honor to inform you that the
said John Benich after having been released by the military
authority, lived two months in his father’s house, and in the month
of October returned to the United States and precisely to Chicago.
This information was transmitted at the time to Mr. Hammond, U. S.
consul at Budapest. A few weeks ago I received a letter from the
said John Benich, who requested me to inform him about his case, and
if he was canceled from the rolls, so that he may be free to return
to this country in a year or two, for the purpose of getting
married. This information I requested of Mr. Hammond at Budapest,
and I received the reply that the consul was too busy with consular
business to occupy his time in this case, and if Mr. Benich wanted
to know about his case to employ a lawyer. I do not know now what I
am to reply to the said Benich, and I beg you will be kind enough to
inform me if you know anything about it.
I am, etc.,
[Page 43]
[Inclosure 4 in No. 93.]
Mr. Gelletich
to Mr. Tripp.
U.
S. Consular Agency,
Fiume, March 23,
1894.
Sir: I beg to inform you that the chief of
the political district of Sussak-Tersato appeared in my office and
informed me that John Benich is canceled from the rolls of the army,
and further informed me that he is instructed to give satisfaction
for the offense to U. S. consular authority, and requested me in
what manner I require such satisfaction.
I beg you to inform me what I am to do, and what kind of satisfaction
I am to ask of the said chief of political district.
Awaiting your kind reply,
I am, etc.,
[Inclosure 5 in No. 93.]
Mr. Tripp to
Mr. Gelletich.
U.
S. Legation,
Vienna, March 25,
1894.
Dear Sir: I have your favor of the 23d
instant, as well as your letter of February 20, in reference to John
Benich, which last-named letter I have delayed answering until I
could have something more definite from the ministry of foreign
affairs of Austria-Hungary.
In reply to your inquiry as to what kind of satisfaction you should
demand of the district officers for the disrespectful treatment of
yourself on the occasion of arrest of John Benich, I have only to
say, the Government of the United States expects and demands
respectful treatment of her officers, on all occasions, when acting
in their official capacity, and if the officer of another Government
has willfully or ignorantly failed to accord such treatment, or has
by his acts not only ignored, but treated with open contempt, the
authority of an officer of another Government, not only the law of
nations, but that pertaining to the most ordinary relations of
gentlemen with each other, requires that he should admit his error
by such acts of recognition as one gentleman should always know how
to express to another.
You are not in a position to speak for the Government you represent,
further than to be satisfied as to a proper apology for the insults
you may have received in your representative capacity, and whatever
therefore, by way of an apology to yourself, or recognition of error
committed on the part of the district officers, may be satisfactory
to you will be satisfactory to the Government of the United States,
so far as its official dignity or its national honor may be a matter
of diplomatic concern.
Hoping that this unpleasant matter may soon be satisfactorily
terminated,
I have, etc.,
[Inclosure 6 in No. 93.]
Mr. Gelletich
to Mr. Tripp.
U.
S. Consular Agency,
Fiume, May 26,
1894.
Sir: In the case of John Benich, American
citizen illegally recruited, and this case ended satisfactorily, I
beg to inform you that yesterday I received a letter from the royal
district authority of Sussak. I beg to inclose a translated copy
from Croatian language, and with this letter I hope that the matter
has ended.
The chief of the district authority also appeared in my office and
verbally expressed his regrets for the occurrence.
I am, etc.,
[Page 44]
Copy of inclosure.
To the honorable the Consular
Agent of the United States at Fiume:
Sir: I take the liberty to express to your
honor my deep regret regarding the case which happened on May 20,
1893, in the matter of your protest for the recruiting of John
Benich, and I assure you that this case, based on misunderstanding,
shall not alter at all in the future the good and friendly relations
which have existed from early times between the royal district
authority of Sussak and the honorable consular agency of the United
States of America in Fiume. Accept, etc.,
[Inclosure 7 in No.
93.—Translation.]
Count Welsersheimb to Mr. Tripp.
The imperial and royal ministry of foreign affairs has not failed to
address itself to the royal Hungarian ministry in compliance with
the esteemed note of September 26, 1893, No. 24, in reference to the
enrollment in the army on May 20, 1893, of John Benich, a
naturalized citizen of the United States, asking that he be
definitely discharged from the imperial navy (of which temporary
discharge the foreign office had the honor of informing the
honorable legation in the note of June 23, 1893), and that full
investigation be made relative to the manner of procedure adopted by
the Croatian authorities at Novi toward the intervening U. S.
consular agent at Fiume, Mr. Gelletich, and the judgment passed upon
similar cases by the Croatian authorities.
The imperial and royal ministry of foreign affairs, having received
the respective information from the royal Hungarian minister,
president, is now in a position to report to the honorable legation
of the United States the result of the investigations, as well as
the consequences deduced by the Croatian authorities, adding that
the delay in the present instance is due partly to the minute and
careful treatment which the case has received on the part of the
officials charged with its examination, and principally to the many
facts, which, in order to ascertain them, had to be referred to the
competent Hungarian central bureaus, which necessarily required a
greater length of time.
The result of the investigation, as it now appears on the records, is
as follows:
Ivan Dominik Benich, born August 3, 1871, at Dvorska, community of
Crkvenica, legal son of Michael and Helena Benich, Hungarian by
birth, received a passport from his home authorities on March 21,
1884, No. 2318, good for three years, and for America, and by his
own declaration, on record, as well as by the testimony of Andria
Car, his traveling companion, left his home for the first time in
1885 as a youth 14 years old.
The above-named Andria Car, as well as Ivan Benich himself, both
state, and several other witnesses testify to the fact, that Ivan
Benich returned to his native place in October or November, 1888.
His first absence, therefore, lasted only three years and several
months. The time from November, 1888, to the 24th of April, 1889, he
passed in his native town, Dvorska, as testified by the following
witnesses: Maria Benich, Jelena Brujac, Mate Skreljan, Tomo Kathic,
Ana Benich, Ivanova Felicina Benich, Ivan Katnic.
Additional proof of this statement will be found in the fact that an
entry on the records of the parish church in Crkvenica shows that
Ivan Benich officiated in the above-named church as an official
witness to a baptism three times, namely, on November 11, 1888,
November 24, 1888, and on February 27, 1889. His mother also
testifies that he passed the winter from 1888 to 1889 in the house
of his parents, and that he was present at the marriage of Bartol
Zupan in Lad vie, which took place on January 18, 1889. This last
fact is also corroborated by Katharina Zupan, Ursula Zupan, Ana
Brenjac, and Moztin Zupan. The innkeeper, Ivan Dracic, confirms that
during the carnival of 1889 Benich arranged balls in his house, and
that on the last three days of the carnival of that year, namely, on
March 3, 4, and 5, he stopped in his house. An official certificate
given by the county clerk of Modens, Fiume, and Buccari shows that
Ivan Benich, at his own request, obtained a passport dated on the
9th of February, 1889, numbered 361, good for two years, for Bosnia
and the Herzegovina.
The witnesses, Vicko Car, Ivan Zupan, and Andria Car, testify that
Benich left his home for the second time on April 24, 1889, and went
via Fiume to Bremen, where he embarked, together with the
above-named three persons on board of a North German Lloyd steamer,
in May, 1889, and arrived in New York, whence he started
[Page 45]
for Chicago, where he has an
uncle, Gregor Benich, who keeps a coffeehouse. In April, 1893, he
again returned to his native country, anu procured, while at Vienna,
a passport from the U. S. legation, dated April 15, 1893, numbered
379.
This second absence from his home, therefore, lasted from April,
1889, to April, 1893, or four years. Foregoing testimony and
Benich’s own statement therefore, bear ample proof that his sojourn
in America from 1885 to May, 1893, was interrupted by his visit to
his native country lasting from October, 1888, to April, 1889, and
that consequently, he was neither during his first nor during his
second stay, uninterruptedly for a period of five years in America.
On the ground of this fact, fully ascertained and proven by the
investigations, and in conformity with the provisions of paragraph
50, of the Hugarian law, Article I, of 1879. relative to the
acquisition and loss of the Hungarian citizenship, the following
decision was given by the Governor (Banus) of Croatia,
Slavonia-Dalmatia, dated on the 26th of May, 1894, No. 22054.
In view of the fact that Ivan Benich has not resided uninterruptedly
for five years in the United States of America, and his American
citizenship is therefore, according to Article I, of the treaty of
September 20, 1870, to be regarded as having been acquired
fraudulently, he be considered as a subject of Hungary, and that in
consequence the U. S. Government be petitioned to cancel the
certificate of naturalization given to Benich and dated at Chicago
the 5th of October, 1892, as well as his passport dated at Vienna,
the 15th of April, 1893, No. 379.
As far as the course is concerned which the Croatian authorities saw
proper to adopt towards Ivan Benich, at his enrollment, despite the
protest made by the U. S. consular agent at Fiume, the governor of
Croatia does not hesitate to state that the two officials who acted
on the occasion, namely the chief of the district at Novi, Otto
Rajakovic and his assistant in Sussak, Constantin Rajcevic, as
members of the enrollment commission, were by no means justified in
denying their recognition to the certificate of naturalization
issued by the court of Cook County, Chicago, in 1892, and to the
passport given by the U. S. legation in Vienna on April 15, 1893, or
in refusing to respect them as legal documentary proof, but that it
would have been their duty to take due cognizance of these papers,
to take into consideration the protest made by the consular agent at
Fiume, to cancel Benich’s enrollment and to submit their suspicions,
that these papers had been procured by unfair means, to the
competent authorities for decision, and that therefore the two
above-named officials had rendered themselves liable for a violation
of their official duty by not showing to these papers, or to the
remonstrance made by the consular agent, the respect which was
due.
Attention must be called to the fact, however, that these two
officials acted without the knowledge and authority of their
superiors, but in their own sphere and upon their own
responsibility, and that furthermore, although their course was an
incorrect one, they certainly cannot be accused of having been
guilty of an intentional lack of respect to the provisions of the
treaty with the United States, or a want of deference due to the
representative of the friendly Government of the United States; but
that the conduct displayed by the two functionaries is explained in
this, that having found that Benich had not been absent for fully
five years, and therefore not removed from their jurisdiction, they
had bona fide acted in the belief of proceeding lawfully, and that,
in the present case, they had been misled in their interpretation of
the provisions of the military law, the law governing acquisition
and loss of Hungarian citizenship, the provisions of the treaty of
September 20, 1870, and the claim made by the U. S. consular agent,
which appears the more entitled to belief as a similar case had not
occurred since 1870, either within their practice or within the
limits of Croatia or Slavonia.
Without attaching particular weight to these extenuating
circumstances, the governor of Croatia and Slavonia has nevertheless
given orders to proceed against the two above-named officials, and
the law provided for such case will be applied and take its course.
The governor at the same time expresses his deep regret that
officials belonging to his department have, by their incorrect
behavior, given just cause for complaint to the U. S. legation, in
which connection it must be observed that, in case the
investigations now pending show that the remark said to have been
made by a member of the enrolling commission to Mr. Gelletich, the
U. S. consular agent, that neither the convention of September 20,
1870, nor the authority of the consular officer of the United States
would be recognized, should be true, the presiding officer of the
enrolling commission will have to answer the charges which will be
brought against him, as it would have been his duty to examine the
protest made by the consular agent at Fiume and to determine
afterward what steps would be proper to take.
In regard to that part of the esteemed letter of September 26, 1893,
which treats of the necessity that papers issued by the competent
authorities of one country should be respected and recognized by the
authorities of a third state as long as these documents do not bear
unmistakable proofs of having been counterfeited or otherwise
obtained by fraud, the provincial government of
Croatia-Slavonia-Dalmatia
[Page 46]
begs leave to say that it fully shares the views expressed in that
part of the note, and that the governor has not failed to instruct
all his subordinate officers to act in the future in due
conformity.
As regards the indemnity, however, which Benich claims for the
annoyance to which he was subjected, the facts show that no such
claim has any foundation, for the reason that there is no one to
blame in the matter except Benich himself; and the ministry of
foreign affairs, at the instance of the minister-president of
Hungary and the governor of Croatia-Slavonia-Dalmatia, takes this
occasion to request the honorable legation of the United States to
submit the facts in this case, as they appear from the foregoing
official investigation, to the Government of the United States, and
at the same time to plead that the necessary steps be taken to
cancel the certificate of naturalization given to Benich at Chicago,
on October 5, 1892, and the American passport issued to him, on the
strength of this certificate, by the legation at Vienna on April 15,
1893, which it is believed the U. S. Government will not hesitate to
do after having been convinced that Benich had not been in the
United States uninterruptedly for a period of five years, and that
his certificate of naturalization had therefore been issued to him
erroneously, or had been obtained by fraudulent means.
While the ministry of foreign affairs looks forward to a decision
arrived at by the competent American authorities, it cherishes the
hope that, so far as the complaint of the U. S. consular agent at
Fiume, Mr. Gelletich regarding his protest against the enrollment of
Benich is concerned, the Government of the United States, in view of
the expressions of regret and the promise of the governor of Croatia
to bring the guilty officials to justice, will not refrain from
looking upon the lamentable incident in question as terminated.
The undersigned avails, etc.,
Welsersheimb,
For the Minister of Foreign
Affairs.
