Mr. Peirce to Mr.
Olney.
Legation of the United States,
St. Petersburg
,
October 16,
1895
. (Received Oct. 31.)
No. 157.]
Sir: I have the honor to inclose herewith copy
and translation of Mr. Chichkine’s note of October 15 in reply to mine
of October 10 regarding Anton Yablkowski, as well as its inclosure
giving the text [Page 1104] of article
325 of the Penal Code. I also inclose copy of my reply of this date. I
note that the law states that the return to the Empire, after change of
allegiance, is punishable with deportation to Siberia, while the penalty
of change of allegiance is deprivation of civil rights and
banishment.
I have taken the ground that the visé of the consul gave permission to
enter the Empire as an American citizen, and that therefore he could not
be punished for that offense, and that he should not be prosecuted and
punished for the political offense of change of allegiance, his
citizenship of the United States having been recognized and indorsed by
the visé of the consul, who was evidently competent for that purpose,
and permission, unqualified by special conditions, was thereby given to
enter the country, notwithstanding any former political status, if,
indeed, the consul, as agent of his Government, did not thereby give his
consent to the change of allegiance.
I have declined to admit that the ignorance of the consul regarding the
special facts alters the situation, and have intimated that this was the
fault of the system of administration, for which the United States
Government was not responsible, stating that a few questions of the same
character used by Russian consuls to disclose the race of applicants
could easily disclose previous allegiance.
I would point out to you that the case of John Ginzberg, who we were
before told was held as a deserter from military service, is now based
upon an infraction of this same article 325 of the Penal Code. In his
case, however, there was no visé of passport.
Lately there has been at the legation a Mr. Borowday, an American
citizen, who was formerly a Russian subject, but who has now lived in
the United States for some twenty years. He became a naturalized
American without seeking the consent of the Imperial Government, and has
recently come to Russia to engage in the practice of his profession,
that of electrical engineer. He seemed himself to be aware of the fact
that his position was likely to give him some trouble, but had believed
that the law governing such cases was no longer enforced. He was
strongly advised at the legation to leave the country until he could
obtain the consent of the Imperial Government to his change of
citizenship. There seemed to be considerable doubt as to whether he
would follow this counsel, and the legation is not informed whether he
is still in Russia or not.
I have, etc.,
Herbert H. D. Peirce,
Chargé d’Affaires ad interim.
[Inclosure 1 in No.
157.—Translation.]
Mr. Chichkine to
Mr. Peirce.
St.
Petersburg
,
October 3/15,
1895.
Mr. Chargé d’Affaires: In answer to your
note of September 28 last, I hasten to inform you that the man
Yablkowski has not been arrested j he is yet at liberty.
You have the goodness to say, Mr. Chargé d’Affaires, that an
individual, having been a naturalized citizen of the United States,
conformably to the laws of that power, should not be prosecuted in
his country of origin once that he has legally embraced the American
subjection.
I think it my duty to answer that it is precisely the character of
legality which fails in the action of which Yablkowski is
accused.
[Page 1105]
The action imputed to Yablkowski would form an infraction of article
325 of the Penal Code, of which I herewith join the authentic text,
together with translation into French in parallel. This article
defines the crime of which Yablkowski is accused.
To conclude, I have the honor to communicate to you that our
consul-general at Danzig could not in any possible way know the
antecedents of the man Yablkowski, and did not have a plausible
excuse to refuse to visé his passport, and this can not consequently
prevent justice from following its course.
Receive, Mr. Chargé d’Affaires, the assurance, etc.,
[Subinclosure to inclosure 1 in No.
157.—Translation.]
Article 325, Penal Code.
Whoever absents himself from his fatherland and enters foreign
service without the permission of the Government, or becomes subject
of a foreign power, is condemned for such violation of duty and oath
of faithful subjection to the privation of all civil rights and to
perpetual banishment from the territory of the Empire, or, in case
of voluntary return to Russia, to deportation to Siberia.
[Inclosure 3 in No.
157.]
Mr. Peirce to Mr.
Chichkine.
Legation of the United States,
St. Petersburg
,
October 4/16, 1895.
Your Excellency: I have the honor to
acknowledge the receipt of your note of October 3/15, relating to
Anton Yablkowski.
Your excellency has had the goodness to quote me as saying “that an
individual being a naturalized citizen of the United States,
conformably to the laws of that power, can not be prosecuted in the
country of his origin when he has legally embraced American
subjection.” I hasten to point out to your excellency that I have
neither affirmed nor denied this proposition. I have stated that my
Government could not be expected to acquiesce in the proposition of
treating as a crime the act of lawfully and within its own
jurisdiction becoming one of its own citizens, and I have further
advanced the opinion that the visé of the passport of such a citizen
by competent authority grants him permission to enter at the same
time that it recognizes his allegiance to the power granting the
passport, which should free him from prosecution upon a penal
charge, on entering the country of his origin for the political
offense, if it be one, of change of allegiance.
I beg your excellency to note that the basis of my protest is against
the prosecution and punishment of this man upon the political charge
of becoming a citizen of the United States, his American citizenship
having been duly indorsed and permission to enter Russia formally
granted him by an officer of the Imperial Government, competent for
the purpose, or, for the same reason, for returning to Russia after
change of allegiance.
The text of the law itself, which your excellency has so kindly
favored me with, states that the act of change of allegiance becomes
a penal offense, in default of the permission of his Government. In
the present case, the competent officer of the Imperial Government
having attached his visé and recognition to the American passport,
thereby [Page 1106] acknowledging
and assenting to the American citizenship, may easily be supposed,
as the agent of the Imperial Government, to have granted consent to
the act.
I again submit that the man entered Russia as an American citizen, by
permission of the imperial authorities, and without warning or
notice that any condition was attached to this permission to enter,
other than the tacit and usually accepted one, of obeying its laws
while within the Empire.
I am unable to admit that the ignorance of the special facts in the
case on the part of the consul-general at Danzig alters the
situation. That would seem to be an administrative accident, for
which my Government is not responsible. A few questions directed to
that end would have determined whether the applicant had ever been a
Russian subject. This would have involved simply the application of
the practice which the Russian laws obliged him to make use of in
ascertaining whether the man was of the Jewish race.
Your excellency is good enough to say that the man has not been
arrested, but is still at liberty. May I ask if this liberty is
qualified, or if he is free to leave the country should he desire so
to do.
I avail myself of this occasion, etc.,
Herbert H. D. Peirce,
Chargé d’Affaires ad interim.
