Mr. Peirce to Mr. Olney.

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.

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.

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.