Mr. Tripp to Mr. Olney .

No. 151.]

Sir: I have the honor to submit for your consideration the correspondence between this legation and the Imperial and Royal ministry of foreign affairs of Austria-Hungary in reference to the case of Solomon Czosnek, as shown by notes and translations herewith inclosed, the facts of which are as follows:

Solomon Czosnek was born at Chrzanow, in the province of Galicia, of Austrian parents, on the 1st day of April, 1873. In 1878 his father emigrated to America, and having established a permanent home in the United States sent for his family, consisting of a wife, the complainant, Solomon Czosnek, and a younger brother. Subsequently, in 1888, the father was duly naturalized a citizen of the United States, his son Solomon being then a minor of the age of 16 years. Young Solomon Czosnek continued to reside in the United States until January, 1895, when, desiring to visit Austria-Hungary upon some matters of business connected with his father’s affairs, he applied to and obtained from the Department of State at Washington a passport in the usual form, the same being dated January 5, 1895, and numbered 7178.

Arriving at Chrzanow about the 1st of March, 1895, he was summoned by the local military authorities to appear for military duty. To this summons he replied that he was an American citizen and not subject to military duty in Austria-Hungary, and exhibited his passport. Subsequently he was arrested by the criminal authorities upon the complaint of the district attorney at Krakau, charging him with a violation of the military law of Austria-Hungary by evading military service when properly summoned. Upon this complaint, which in no way attacks or seeks to impeach the passport of Czosnek, he was bound over to the district court to answer the criminal charge therein contained. Czosnek appealed to this legation and I intervened in his behalf, which resulted in his discharge, as disclosed by the correspondence itself.

The case becomes valuable as a precedent in this, that, while in the John Benich case (see my dispatch No. 931) the Government of Austria-Hungary admitted the position taken by the Department of State through this legation, viz, that the passport of a friendly nation was prima facie evidence of citizenship and must be respected as such by local executive and administrative officers, the right has several times been suggested that judicial officers might with impunity act in disregard of the same. I therefore took occasion in this case to deny the right of the district attorney, whose complaint is herein set out in full, to hold this man to answer for failure to perform military duty in Austria-Hungary, at the same time ignoring his right as an American citizen and treating with contempt his passport from the State Department.

Without trenching upon the debatable ground of how far the courts of a friendly nation may go in reviewing the decisions of another friendly nation in reference to the status of a citizen claimed by either [Page 14] Government, I contented myself with politely but firmly contending that in a case where no charges of fraud were made against the person presenting the passport, in its procurement or as to his own identity, etc., the judicial officers were as much bound as executive or administrative officers to respect the paper when fair upon its face, and that it must be taken by them as prima facie evidence of the facts therein recited; and it gives me great pleasure to say that this view is shared by the Imperial and Royal ministry of foreign affairs for Austria-Hungary, as will be seen by its final note, a translated copy of which is herewith submitted, and by which this legation is informed that the district attorney at Krakau was not only instructed to immediately dismiss his complaint, but that in future the judicial authorities of Galicia were instructed that they must be governed in similar cases by the treaty and the views expressed in my notes to the imperial and royal ministry of foreign affairs.

It gives me great pleasure to add that since the determination of the Benich case, to which I have already referred, the annoyances of our citizens bearing American passports have been much less frequent, and it is to be hoped that the determination of this case and the instructions that have in accordance therewith been issued to the local authorities of Galicia will perhaps entirely end all further annoyance and hindrance to American travel in the provinces of Austria-Hungary. The frequent complaints in the past, it gives me pleasure to say, have not arisen from any want of courtesy or consideration on the part of any officials of the foreign office, or of the higher officers of State, but from overzeal and want of knowledge on the part of provincial officers or local authorities not under the control or jurisdiction of the ministry of foreign affairs.

Trusting that the determination of this matter may meet with your favor and approval,

I have, etc.,

Bartlett Tripp
.
[Inclosure 1 in No. 151.]

Mr. Tripp to Count Goluchowsky .

Your Excellency: One Solomon Czosnek, a naturalized citizen of the United States, makes complaint to this legation that he has been arrested at Chrzanow, Galicia, and held to answer the criminal charge of illegally abstaining from fulfilling military duty. The facts, as presented to this legation, are as follows:

Solomon Czosnek was born in Chrzanow, Galicia, on April 1, 1872, of Austrian parents. In 1878 the father emigrated to America, and having established a home in the United States sent for his family, consisting of a wife and two sons, the complainant, Solomon Czosnek, and a younger brother; that subsequently in 1888, the father, having made previous application, was duly naturalized a citizen of the United States, this complainant being at that time 16 years of age; that he has since said naturalization and since his arrival in the United States continuously resided therein until January, 1895, when, desiring to visit Austria upon matters of business, he applied to the Department of State at Washington, D. C, and was granted a passport in the usual form, the same being numbered 7178 and bearing date January 5, 1895. [Page 15] Arriving at Chrzanow, he was, about the 1st of March, 1895, summoned to appear for military duty, to which summons he replied by submitting his passport and claim of American citizenship.

Mr. Czosnek was, on the 1st of May, 1895, subsequently arrested and held to answer the criminal charge of illegally abstaining from fulfilling military duty as above stated. To this charge he made the same answer and again exhibited his passport, which was taken from him by the local authorities, and has since been retained by them. Mr. Czosnek desires to visit Russia and other parts of Europe before returning to America, but is still detained at Chrzanow under surveillance and his passport is still withheld from him.

If the facts are as stated in the complaint made to this legation, a great wrong has been done Mr. Czosnek, one which your excellency, it is confidently expected, will immediately take measures to correct.

Under the naturalization laws of the United States, when the father becomes a naturalized citizen of that Government his wife and minor children become, ipso facto, citizens of the United States, and the citizenship of this son, under the facts herein stated, it will be at once admitted, comes clearly within the terms of the treaty of 1870, which provides that “citizens of the Austro-Hungarian Monarchy who have resided in the United States of America uninterruptedly at least five years and during such residence have become naturalized citizens of the United States shall be held by the Government of Austria and Hungary to be American citizens and shall be treated as such.”

This is but one of several instances in which the local, civil, and military authorities of Austria-Hungary have deemed it their right to pass upon the validity or authenticity of American passports, whereby our citizens have been long hindered and delayed, and in some cases have been arrested and put to great cost and inconvenience. In the case of John Benich (see note of this legation to the foreign office, No. 93, under date of August 23, 1894), I took occasion to express fully and at length the views entertained by my Government as to the right of the local authorities of one government to review the decision of another friendly government under the general principles of international law, and in which view Count Welsersheimb, speaking for his excellency the minister of foreign affairs, in his reply (see note from foreign office of date August 18, 1894, No. 28523–7), approving the views therein expressed, took occasion to say:

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 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.

Again assuring your excellency, as in my note in that case I took occasion to do, that should any case arise in which the passport of an American citizen is drawn in question as to the identity of its bearer, or as to fraud in the procurement of the passport itself, this legation will hold itself in readiness to aid in causing the allegations and complaints to be immediately investigated by the authority from which the document issued, to the end, in all cases when the charges are sustained, that the document may be canceled and the bearer of the same be convicted and punished, my Government must insist, where its passport, bearing upon its face an apparent validity, is presented to the local authorities of your Government, that it must be respected as such [Page 16] without subjecting its bearer to months of delay and great expense in proving and determining the facts of which the paper is prima facie evidence and, as to the local authorities to whom it is presented, the best evidence.

Being assured by our previous correspondence that no difference of opinion can possibly exist between the two Governments as to the legal questions involved, I trust it is not asking too much to request that such instructions may be issued to the different provinces of Austria-Hungary as may in the future save your excellency the annoyance, and this legation the trouble, of making and passing upon complaints of American citizens deprived of their rights by provincial authorities acting in violation of the rules of international law governing the intercourse of friendly powers.

And at the same time permit me, etc.,

Bartlett Tripp
.
[Inclosure 2 in No. 151.—Translation.]

Mr. Cziraky to Mr. Tripp .

Sir: The ministry of foreign affairs has not neglected to address itself to the minister of public defense in regard to the nonfulfillment of the military duty on the part of the alleged citizen of the United States, Solomon Czosnek, as requested in the esteemed note of May 23 last, No. 96, in order that the case in question be fully investigated and further steps be subsequently taken.

The minister of public defense now reports that the investigations which have been made furnish the following result:

Solomon Czosnek, born in Chrzanow in 1872, was called to report for military duty, by ticket No. 584, in the year 1893. He did not answer this summons, however, neither in 1893 nor in 1894, for the reason that he had gone to America when he was 16 years old in company with his mother, without having obtained a permit to emigrate. He was, therefore, carried on the descriptive rolls according to paragraph 109 of the military law, and marked as being absent.

On his return to his native town in 1894, he was summoned by the authorities of his community to appear before the military board of examination, and in February, 1895, he reported to the district captain at Chrzanow, protesting against his enrollment on the ground of having become a citizen of the United States by the naturalization of his father in 1888, when he was yet a minor. To prove his assertion, he produced the passport which had been issued to him.

His statements were written down by the district captain at Chrzanow, and afterwards transmitted to the state attorney at Krakau for further action.

In the course of proceeding against Solomon Czosnek the district court at Chrzanow had taken the passport away from the accused, and had forwarded the same to the United States legation at Vienna, with the request that its genuineness be verified, asking at the same time whether the owner of the document in question was really an American citizen.

A reply has so far, as the provincial governor at Lemberg under date of June 8 reports, not yet been received, and the provincial government of Galicia is of opinion that Solomon Czosnek’s passport is still [Page 17] with the United States legation. The accused, it must here be said, is not deprived of his liberty, and is allowed to move about freely.

The case, as it appears from the foregoing, being still pending, the ministry of public defense is unable to act before judgment has been passed, the more so as it must first be ascertained whether Solomon Czosnek is the legitimate son of the father who emigrated to America and whether he received his citizenship with the latter according to law.

While the ministry of foreign affairs reserves to itself the privilege of giving further information to the honorable envoy of the United States as soon as received, the undersigned avails, etc.,

Cziraky,
For the Minister of Foreign Affairs.
[Inclosure 3 in No. 151.]

Mr. Tripp to Count Goluchowsky .

Your Excellency: Referring to the note from this legation, No. 96, of May 23, 1895, in reference to the case of Solomon Czosnek, I have the honor to further say that I have this day received from Mr. Czosnek another communication containing copy of an “Anklage-Aki” served upon him, a duplicate of which is herewith inclosed for the consideration of your excellency.

If the reasons given by the district attorney for holding this man to answer before the courts to a criminal charge are the real and only ones against him, I am sure your excellency will agree with me that it is my duty to insist upon prompt and immediate discharge. The district attorney says:

In view, however, that the accused, although he emigrated before he was liable to military duty, received no permit from the minister of defense (par. 64 of the military law), or at least can not produce one, it can not be assumed that be is exempt from military duty even if he should be provided with a United States passport.

In other words, a United States passport is not prima facie evidence that a man is an American citizen, and as such exempt from military duty. The language used admits of no other meaning.

No charge is brought against this man that his passport has been obtained by fraud, that he is not the identical person therein named, but he is arrested upon the ground that he was born a citizen of Austria-Hungary and has failed to report for military duty during the three years 1893, 1894, 1895, since he has become of age, and this in spite of his passport as an American citizen, which he presents and the authenticity of which stands unchallenged and undenied. Your excellency will agree with me that no principle of international law permits the passports of a friendly nation to be thus ignored or even treated with contempt.

Without desiring to enter upon the field of discussion as to how far or under what circumstances a friendly nation is permitted to attack the passports of the citizens of another friendly nation, I content myself with denying the position taken by the district attorney in this case and the reasons given by him for holding this man to answer a criminal charge and for assuming that he may do so notwithstanding the passport, and without attempt at impeaching the same. As Mr. Czosnek [Page 18] has already been long detained in Chrzanow at great expense, and the reasons given by the local authorities are such as can not be admitted in justification of his further detention, I am led to confidently expect that your excellency will immediately take such steps in the premises as will make complaint as to further action on the part of the local authorities in Chrzanow unnecessary by my Government.

I avail, etc.,

Bartlett Tripp
.
[Subinclosure.—Translation.]

charges.

The state attorney at Krakau charges Solomon Czosnek, of Chrzanow, 23 years old, single, commercial correspondent, to have avoided rendering military duty, and to have been outside of the limits of the Austro-Hungarian Empire during 1893 and 1894, at a time when he should have reported for service, by which act he violated the provisions of paragraph 45 of the law of April 11, 1889, N–41, and it is ordered that he be tried before the provincial court at Krakau, where he will be summoned, and that during the trial the documents issued by the district captain at Chrzanow on April 5, 1895, and May 22, as well as those of the chief of the community at Chrzanow of April 18, 1895, and all the testimonials of the accused, be admitted.

reasons.

It appears that the accused was born in 1872 at Chrzanow, and was therefore liable to military duty in 1893, 1894, and 1895. He did not report, however, until in the spring of 1895.

He alleges to have emigrated when 16 years old, to have become a citizen of the United States, for which reason he did not report for military duty; nor did he do so until he came to Chrzanow, at the beginning of 1895, when he was summoned. In view of the fact, however, that the accused, although he emigrated before he was liable to military duty, received no permit from the ministry of public defense (par. 64 of military law), or at least can not produce one, it can not be assumed that he is exempt from military duty, even if he be provided with a United States passport, and as he failed to fulfill his military duties in 1893 and 1894, and was during that time in America, the charges appear to be well founded.


The State Attorney.
[Inclosure 4 in No. 151.]

Mr. Tripp to Count Goluchowsky.

Your Excellency: This legation has the honor to acknowledge the receipt of the esteemed note of June 27 last in reference to the case of. Solomon Czosnek, and replying thereto in addition to my note No. 103, of June 27 last, upon the same subject-matter, I have the honor to say in reference to the statement that the district court at Chrzanow has forwarded the passport of Mr. Czosnek to this legation for authentication, that it has never been received at this legation, and if it has been sent, as therein stated, it must have been lost or miscarried. If received by me it would have been examined and promptly returned to the officer from whom received.

Begging permission to again call the attention of your excellency to the contents of my note No. 103, of June 27 last, already herein referred to, and which must have been written subsequently to the esteemed note to which this is in reply, I take this occasion, etc.,

Bartlett Tripp
.
[Page 19]
[Inclosure 5 in No. 151.—Translation.]

Mr. Pasetti to Mr. Tripp .

Sir: The ministry of foreign affairs had the honor of receiving the esteemed notes of June 27 (No. 103) and of June 29 (No. 104) in which the honorable envoy of the United States was pleased to refer to the case of Solomon Czosnek, a naturalized citizen of the United States, arrested at Chrzanow for nonfulfillment of his military duty, denying the position taken by the district attorney at Krakau against the above-named Solomon Czosnek for the reason of having violated the provisions of paragraph 45 of the military law.

The ministry of justice, to whom the matter was referred by the ministry of foreign affairs, now reports that it has not delayed to instruct the State attorney at Krakau to submit the case to a full investigation and to make the necessary depositions with all possible haste.

From the report, which was accordingly made by the State attorney at Krakau, under date of July 10, to the ministry of justice, it appears that the State attorney, after having convinced himself of the lawful naturalization of Solomon Czosnek in the United States, and of the unquestionable genuineness of the passport produced by Czosnek, and his identity, has instructed the district attorney at Krakau to withdraw the charges brought against Czosnek under date of May 31, and to cause the passport, which was among the papers taken from him at the time, to be returned to Solomon Czosnek.

The State attorney at Krakau has, moreover, informed the district attorney that the proceedings instituted by the latter in the premises were not in conformity with the existing regulations, and has at the same time instructed the authorities under his jurisdiction to act in future in strict compliance with the provisions of the treaty of September 20, 1870, and with the views expressed by the honorable envoy of the United States regarding the prima facie evidence of foreign and American passports and documents proving the identity of persons.

While the undersigned has the honor to inform the honorable envoy of the United States of this decision, he avails, etc.,

Passetti,
For the Minister of Foreign Affairs.