Mr. Harris to Mr.
Hay
.
United
States Legation,
Vienna
,
March 21,
1900
.
No. 80.]
Sir: I have the honor to submit my action in
the matter of Gustav Wolf Louis Fischer, a naturalized citizen of the
United States, who is about being banished from Austria. Mr. Fischer is
in the employ of Thomas Cook & Son, and is well known to the
American and English people residing in and visiting Vienna.
The case came on suddenly. It presents the same question as stated in my
dispatch No. 70 of January 10 last, but in a more precise form. The
order of expulsion (banishment) in this case is, as I am informed by Mr.
Fischer’s counsel, in the same words as that set out in my dispatch No.
70, expelling Charles Steidl.
The question exactly stated is: Whether Austria-Hungary has the right to
banish naturalized citizens of the United States who were guilty of no
crime at the time of immigration therefrom, and have violated no law
since their return?
Article 2 of the treaty provides (1) for punishment of crimes committed
before immigration, and (2) for emigrating after enrollment as a recruit
or while in military service. Mr. Fischer was not enrolled, but on
examination was rejected as not then fit for military service, and
thereafter emigrated.
The authorities here admit that Mr. Fischer is protected by the treaty
from both military duty and punishment, and their insistence is
expressed as follows: “And as we can not punish him we will banish him
as an example to our young men.” These are the words of the governor. It
is said Mr. Fischer was required to get permission to emigrate, and
reference is made to section 64 of the military law of April 11, 1889.
My answer is: The last clause of article 2 of the treaty of September
20, 1870, declares (as applied to this case) that if Mr. Fischer
violated this or any other military law “by or after his emigration,”
that after naturalization he is not punishable on return.
Inclosed please find (1) a copy of my dispatch to the foreign office; (2)
a translation of section 64 of the military code.
I have the honor, etc.,
[Inclosure 1.]
Mr. Harris to
Count Goluchowski
.
United States Legation,
Vienna
,
March 20,
1900
.
F. O., No. 59.]
Your Excellency: I have the honor to
present to your excellency the case of a citizen of the United
States of America resident in Vienna, who is threatened with
banishment from Austria. The facts, as I learn them, are as
follows:
Gustav Wolf Louis Fischer was born in Saxony on July 14, 1868. On the
death of his father the mother removed to Vienna, where he was
naturalized and made a citizen of Austria on November 17, 1885. In
March, 1888, in obedience to a notice, he appeared before the proper
officers and was examined and pronounced unfit for military service
and not accepted as a recruit. Thereupon he emigrated to the United
States under the provisions of the treaty of September 20, 1870. He
resided in the United States continuously more than five years, and,
under and in accordance [Page 17] with
the said treaty and the laws of the United States, became a citizen
thereof by the judgment of a proper court in the city of Chicago and
State of Illinois on December 5, 1893. Afterwards, on the 2d day of
March, 1895, the Secretary of State of the United States of America
issued to him a passport, which he still holds, as evidence of his
American citizenship. No claim is made, to my knowledge, that Mr.
Fischer is not a citizen of the United States or his naturalization
illegal or his passport improperly granted.
If any claim of either kind is made to this legation, permit me to
assure your excellency that it will be thoroughly investigated by my
Government, and if found to be true, proper steps will be taken to
annul the same.
I learn that the authorities having his case in charge do not
question Mr. Fischer’s American citizenship, but, on the other hand,
make that the ground on which is based the order of banishment.
It seems that some weeks ago he was called before the
“Magistratisches Bezirksamt” of the ninth district in Vienna, and an
order made to the effect that he be banished. From this Mr. Fischer
took an appeal to the governor of Lower Austria, in whose office the
case is now pending.
In a conversation had on yesterday with His Excellency Count
Kielmansegg, governor, it was suggested that it might be better to
present the case to your excellency now rather than later. And it is
in accordance with such suggestions that I have the honor to bring
the case immediately to your attention.
I submit to your excellency that Mr. Fischer is protected from the
threatened punishment by the said convention concerning
naturalization.
The first clause of article 1 stipulates 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 clause is unlimited and embraces all citizens. The second
article of said treaty reserves unto each country, and so unto
Austro-Hungary the right, in this case to punish Mr. Fischer on his
return for any action punishable by the laws of this Monarchy,
“committed before his emigration.” I am informed that no claim is
made of the right to punish Mr. Fischer under said clause. The
second clause of said article reserves the right of the
Austro-Hungarian Monarchy to punish such emigrant after
naturalization and return in case “(1) if he has emigrated after
having been drafted at the time of conscription and thus having
become enrolled as a recruit for service in the standing army; (2)
if he has emigrated whilst he stood in service under the flag or had
a leave of absence only for a limited time; (3) if, having a leave
of absence for an unlimited time, or belonging to the reserve or to
the militia, he has emigrated after having received a call into
service, or after a public proclamation requiring his appearance, or
after war has broken out.”
It is not claimed, as I am informed, that Mr. Fischer is subject to
punishment under the said clause set out. He was never accepted in
the army as a recruit or soldier. But the insistence against Mr.
Fischer is” that because he is by the treaty free from punishment
therefore he shall be banished.
Banishment is punishment. Vattel declares that banishment is “a mark
of infamy.” Another says it is “a disgraceful punishment.”
I submit to your excellency that it is a solecism to argue that
because Mr. Fischer is free from trial and punishment under the laws
of Austria-Hungary therefore he should be banished. The treaty is
the law of this case, and binds both nations and protects the
citizens of each while in the lands of the other. He was not subject
to punishment at the time of emigration. He has violated no law of
this Monarchy since he became a citizen of the United States.
It is said that Mr. Fischer violated section 64 of the military law
of April 11, 1889. It is urged, as I am informed, that Mr. Fischer
violated said section because he emigrated without the permission of
the minister of home defense. I do not pause to inquire whether the
contention is well taken. The words of the treaty, as applied to Mr.
Fischer, are if he, “by or after his emigration has transgressed the
legal provisions on military duty” (except the three instances
already provided), “on his return he can not be held to military
service, nor remain liable to trial and punishment for the
nonfulfillment of his military duty.”
In this case all right of punishment, if any, is remitted by the
terms of the treaty. Mr. Fischer now stands under this treaty an
innocent man; as innocent as if he were a native-born citizen of the
United States. I have the honor to respectfully request therefore
that your excellency will cause the case to be examined. And if it
shall be found that I have misstated or omitted any material fact I
beg that your excellency will cause it to be brought to my
attention. And on such examination I have [Page 18] the honor to further request your excellency to
take such steps as may be proper to cause said order of banishment
to be revoked.
I avail, etc.,
[Inclosure
2.—Translation.]
Paragraph 64 of the military law of the 11th of
April, 1889.
Discharge for the purpose of emigration may be granted to a member of
the army (navy) by the imperial and royal minister of war.
Emigration of such other persons as may be liable for service, as
also of such who have not yet reached the age of conscription, is
dependent upon the permission of the minister of home defense.
Permission to emigrate may be granted to a recruit, or to a person
not yet liable to present himself for military service, or who has
not fully satisfied his liability to present himself for military
service, then only in case he emigrates with his parents or
parent.
The act of emigration is to be considered as effected then only when
the parson emigrating has, within a year, in fact removed from this
Monarchy and settled within the foreign country with the intention
there to take up his permanent residence. If emigration does not
take place, the person to whom permission was granted must serve out
the remainder of his period of service interrupted by his release
from the army (landwehr) for the purpose of emigration.
In times of mobilization and war permission to emigrate is not to be
granted to any member of the armed force of the Monarchy.
