Mr. Hay to Mr. Hengelmüller.


My Dear Mr. Hengelmüller: I beg to send herewith a memorandum in reply to the aide-mémoire touching the desire of the Austro-Hungarian Government to amend its naturalization treaty to the United States.

I am, etc.,

John Hay.
[Page 80]


The grievance complained of in the Austro-Hungarian memorandum is male fide naturalization of Austro-Hungarian subjects for the mere purpose of escaping military duty. The remedies suggested are two:

  • First. Amending the naturalization treaty so that the recognition of naturalization be made to depend on the previous Austro-Hungarian consent thereto. As to this, if the treaty were so amended, it would in effect abrogate it, since it would virtually relegate the whole question to the local laws of Austro-Hungary.
  • Second. Amending the treaty by omitting the last sentence of article 11, which exempts naturalized citizens from punishment for nonfulfillment of military duty in all cases save the three cases thereinbefore specified. These three specifications would expressly subject to punishment offenders falling within that description, and the saving clause being abrogated, the effect would be to relegate the whole question of protection and of punishment in all such cases to the Austro-Hungarian tribunals.

Either amendment would annul all the beneficial provisions of the treaty as regards subjection to military duty.

There are doubtless grave abuses of the privileges of naturalization. But while there would be no difficulty in providing a theoretical remedy, the practical difficulty in determining whether a man has become naturalized with such fraudulent intent or not is very great. It is so difficult that no rule has ever been formulated by statute defining naturalization, and the attempt to do so, directly or indirectly by treaty, would probably be futile. Only one phase of the difficulty, however, is suggested by the Austro-Hungarian memorandum.