Mr. Tripp to Mr. Gresham.

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.,

Bartlett Tripp.
[Inclosure 1 in No. 93.]

Mr. Tripp to Count Kalnoky.

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.,

Bartlett Tripp.
[Inclosure 2 in No. 93.]

Mr. Hüning to Mr. Gelletich.

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.,

William Hüning, Clerk.
[Inclosure 3 in No. 93.]

Mr. Gelletich to Mr. Tripp.

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.,

Giov. Gelletich
[Page 43]
[Inclosure 4 in No. 93.]

Mr. Gelletich to Mr. Tripp.

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.,

Giov. Gelletich.
[Inclosure 5 in No. 93.]

Mr. Tripp to Mr. Gelletich.

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.,

Bartlett Tripp.
[Inclosure 6 in No. 93.]

Mr. Gelletich to Mr. Tripp.

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.,

Giov. Gelletich.
[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.,

Konstantin Rojcevic.
[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.,

For the Minister of Foreign Affairs.