Mr. Tripp to Mr. Gresham.
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.,