Mr. Tripp to Mr. Gresham.
Vienna, September 29, 1894. (Received October 12.)
Sir: I have the honor to acknowledge the receipt of your dispatch, No. 89, of date September 14, 1894, in reference to the case of John Benich, and I have, in a formal note, communicated to the imperial and royal ministry of foreign affairs of Austria-Hungary the gratification on the part of the Government of the United States that the position taken by the Department and legation upon the legal questions involved were fully concurred in by Austria-Hungary; and while communicating the further fact that the Department of State had requested the superior court of Cook County, Ill., to require John Benich to show cause why the certificate of naturalization issued to him should not be set aside, on the ground that his protracted absence in Austria-Hungary constituted an interruption of his five-years residence, I took occasion to call the attention of his excellency to the fact that this was all the power that existed in the Department of State to exercise in the premises; that under our form of government the judiciary department, which was charged with the power of granting certificates of naturlization, was wholly independent of the executive department, to which the Department of State belonged, and that should the superior court of Cook County, upon an examination of the case, find that the absence of John Benich was merely temporary, without any intention of abandoning his residence already begun, and that mere temporary absence of such a character was not an interruption within the meaning of the treaty, such decision must govern the case and would be binding upon the executive department of the Government and the Department of State.
I further stated that when the result of the action of the court of Cook County was communicated to this legation it would give me pleasure to transmit the same to the ministry of foreign-affairs.
I have, etc.,