Mr. Hay to Mr. Harris .
Washington , April 13, 1900 .
Sir: I have to acknowledge the receipt of your dispatch No. 80, of the 21st ultimo, presenting the case of Gustav Wolf Louis Fischer, who has been ordered to be banished from Austria, in violation of the naturalization treaty between the United States and Austro-Hungary, and reporting your action in the matter.
Consideration of the general question of the asserted right of a government to expel pernicious aliens and of the effect of an existing treaty of naturalization upon the exercise of such right may be aided by a brief review of the status of the matter in the neighboring Empire of Germany, with which the United States has treaties similar to that of 1870 with Austria-Hungary, and in which the conditions surrounding the return of subjects naturalized abroad are much the same as in Austria.
The German Government has for years contended for the right to expel a returning naturalized German-American if his presence in the country of origin be detrimental to the public good. This has been repeatedly explained to cover the case of a young man, liable and fit for military service, who has evaded the conscription by emigration, and after acquiring United States citizenship has returned to his native community, there to sow discontent among his associates by parading his acquired immunity. As the right to expel a pernicious alien is claimed by nearly all governments as a prerogative of sovereignty, and may be exercised against all aliens who disturb the welfare of the State, without distinction being made between those born aliens and those who have acquired alienship by naturalization, this Government has not contested the German position whenever the facts show the circumstances [Page 19] of the young man’s return are as above stated. I am not aware of any case having arisen in Germany where a young man, rejected for disability, emigrating and becoming naturalized as Mr. Fischer was, has been deemed by the Germans open to the charge of fahnenflucht (flight from the flag), nor would the other circumstances of Mr. Fischer’s case operate to his prejudice. He is nearly 32 years of age, past the years of active service. He was born in Saxony, and obviously has not returned to his native community to sow discontent among the less fortunate comrades of his youth by boasting of his American citizenship. He is sojourning in Austria in the employ of a reputable Anglo-American house, so that his presence appears to be logical and to suggest no sinister motive.
The Department desires especially to approve the point you make, that the right of expulsion is claimed because Mr. Fischer emigrated without permission of the minister of home defense. This requirement is a municipal regulation enacted long subsequent to the date of the naturalization convention between the United States and Austria-Hungary. It belongs to a class of minor provisions and restrictions which that convention expressly declares shall not operate to the prejudice of the returning naturalized citizen. The two Governments agreed in 1870 upon the precise conditions under which a person so naturalized in the one country should be exempt from penalty of any kind on his return to the other country. This Government can not be expected to consent to those conditions being amended at the will of the other high contracting party.
Moreover, this Government can not be expected to assent to the general proposition, now in effect put forth, that an American citizen, who, as you have shown, has lost his Austrian status in full conformity with the existing convention between the two countries, and who, as you assert, has done no unlawful act since his return to Austrian jurisdiction, should arbitrarily be subjected to an exemplary penalty in order to deter other Austro-Hungarian subjects from acquiring American citizenship under the terms of the convention of September 20, 1870. If it were shown that Mr. Fischer’s presence in Austria is pernicious to the well-being of the State, if actions subversive of order and therefore incompatible with the duty of a good American citizen in a foreign land were attributed to him, I might be disposed to consider the evidence in that regard, and, if it appeared sufficient, withhold remonstrance against his expulsion; but no such charges are stated, or even remotely suggested.
You will continue to press the case.
I am, etc.,