Mr. Harris to Mr. Hay.

No. 98.]

Sir: I have the honor to make a further report in Mr. Fischer’s case.

On receipt of your dispatch No. 79 I had a full discussion with Count Lützow, then in charge of the foreign office. (Count Golu-chowski and Count Szecsen were in Budapest in attendance on the Delegations.) He took the ground in the conversation that Mr. [Page 20] Fischer’s conduct was merely colorable. In answer I sent a note to the foreign office, of which I inclose a copy. On the return of Count Goluchowski and Count Szecsen an answer was made, of which a translation is inclosed.

It will be observed that it is asserted that Mr. Fischer is “settled” here. The fact is that he declared to me his purpose to remain during the life of his mother. She is not dependent on him for support or care, as she keeps a leading “pension,” and her daughter, the wife of an army officer, lives in Vienna. The expulsion is based on the fact that he is an alien, so that the case is, after all, one of expelling an American, formerly a subject of this monarchy, solely because his presence is held, by reason of the example, to create discontent among those who have done or are now doing military duty, and to incite young men not yet enrolled to emigrate to escape it.

The question is, May His Majesty’s Government expel Mr. Fischer, whose emigration and naturalization and return were affirmatively authorized by the treaty of 1870, merely because his presence without more tends to create discontent?

On yesterday I went over the case fully with Count Szecsen, His Excellency Count Goluchowski not being at the office. Count Szecsen adheres firmly to the doctrine that the treaty in no wise tends to limit the sovereign power of this State to remove any alien whom the Government thinks should not be permitted to remain. He admits his Government would not expel an American without cause, but adheres to the position that presence of itself may be enough in connection with other facts to make a good cause, and that Fischer’s escape from military examination and probable service is sufficient, with presence, to make proper cause, He refers to the statement of Count Goluchowski set forth in my dispatch to you (No. 70) as the settled law of this monarchy.

I insisted that two or more lawful acts could not be used to produce an unlawful result; that the emigration, naturalization, and return of Mr. Fischer were each by the treaty lawful, and he had done no wrongful act since his return. And I protested with emphasis against the rule laid down in his note already inclosed, and said I would confer with you on my return.

I ought to add that it has been said to me on more than one occasion that His Majesty’s Government had asked, through its minister in Washington, to take up with our Government the question of making some modifications of the said treaty, but had not as yet been encouraged to proceed. The exact modifications were not stated.

While writing this dispatch I learned through Mr. Fischer that he has asked that the order of expulsion be postponed until September and that it was granted on yesterday.

I have, etc.,

Addison C. Harris.
[Inclosure No. 1.]

Mr. Harris to Count Lützow.

F. O., No. 72.]

Your Excellency: Referring to our late conversation touching the case of Mr. Wolf Gustav Louis Fischer, I understand the position taken by your excellency to be that it is apparent that his emigration and naturalization was not bona fide as to [Page 21] the United States, but merely a cover to escape military duty in Austria. Intention is a matter of fact to be shown by contemporaneous conduct. I beg leave to meet the inference put against him by the fact that while in America he was a member of the Illinois National Guard, and rendered military service to that State, and to the United States, in the Pullman strike; also that for years he was in the employ of Marshall Field, the greatest merchant in Chicago, and also that on coming to Vienna he took service in a non-Austrian company. These facts appear from his military certificates and his personal statement on file in this legation, copies whereof I beg to inclose to you herewith.

I venture to submit that if it be permissible to question the bona fides of his naturalization (except in the usual way) that these facts repel any inference or presumption that his citizenship is colorable or his presence here is not entirely guaranteed by the treaty.

I avail myself at the same time of this opportunity, etc.,

Addison C. Harris.
[Inclosure 2.—Translation.]

Count Szecsen to Mr. Harris.

The Imperial and Royal ministry of foreign affairs did not fail, in view of the need possibly arising for further competent action in the case, to inform the Imperial and Royal ministry of the interior of the contents of the esteemed note of the 20th of March, 1900, Foreign Office No. 59, relative to the matter of the expulsion of the naturalized American citizen, Gustav Wolf Louis Fischer.

According to information furnished by the ministry of the interior the following are the facts underlying the matter:

Gustav Wolf Louis Fischer, born June 14, 1868, in Chemnitz, Saxony, was a legalized citizen of Vienna before acquiring naturalization in the United States of America.

It is true that Fischer fulfilled his duty by reporting for examination in the first class in 1888, and was at that time classified as “remanded” (Zurückzustellen); but before fulfilling his further obligations by reporting for later examination he emigrated without permission to the United States, and, secure against punishment by virtue of the protection which Article II of the treaty of September 20, 1870, now afforded him as a citizen of the United States, he returned to take a permanent position in Vienna.

The Imperial and Royal police direction of Vienna, having its attention called to the action of Fischer in regard to the nonfulfillment of his duty by not reporting for his later examinations, ordered, in accordance with item 5 of paragraph 2 of the law of the 27th of July, 1871, Imperial Law Bulletin No. 88, concerning maintenance of public order, the expulsion of the aforementioned from the kingdoms and lands represented in the Reichsrath.

Fischer appealed against this order to the Imperial and Royal Statthalterci (office of the governor), but the latter, in decision of the 9th of May, 1900, No. 40739, declared itself unable to grant his appeal.

Further appeal against the decision of the Imperial and Royal Statthalterci above referred to is, according to paragraph 7 of the law just cited, not permissible.

Inasmuch as the Imperial and Royal ministry has the honor to inform his excellency, the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. Addison C. Harris, of the foregoing, it is believed that in order to enable a correct understanding of conditions, the following remarks should be added:

The opinion expressed in the esteemed note, referred to at the beginning of this reply, to the effect that the order of expulsion in question is a punishment not permitted by the treaty of the 20th of September, 1870, can not be considered correct, when viewed from the standpoint of Austrian law.

The order of expulsion is in no wise to be regarded as a punishment placed upon Fischer because he has not completely fulfilled his military obligations here in this country, as is clearly evident from the one fact that this order is issued by the Vienna police direction, which is an administrative body, whereas, had the punishing of an offense against the military regulations been in question, only the judicial or the military officials would have been competent to act in the matter.

And equally little has the expulsion in question any direct connection with the fact that the aforementioned individual acquired naturalization in the United States. The same measures could just as well, under similar conditions, be applied to a person [Page 22] belonging to some other third state, regarding whom the monarchy had reason to maintain the same views as in Fischer’s case.

The order against the latter possesses, in fact, no other significance than that of an administrative act which really springs from consideration for public order, and is based on the belief that the latter suffers offense when a person, by assuming foreign citizenship, avoids performance of those duties to his country which are placed upon him as upon all his fellow-citizens, and then, protected by this new citizenship from the punishment otherwise resultant from this avoidance of duty, returns and settles permanently in the midst of his former countrymen, who find themselves in a condition not so favorable as is his.

Such an act is not only provocative of discontent in all those who fulfill their obligations to the State, be their fulfillment voluntary or compulsory, but it acts also as a bad example, and were such proceedings unchecked or of frequent occurrence, would work positive harm to the defensive power of the State.

According to the view points here indicated—which alone have been productive of the order of expulsion issued against Gustav Wolf Louis Fischer—the methods of the Imperial and Royal officials can be regarded only as an act of precaution which the common considerations of State demand for the paralyzing of the damaging influence of such occurrences, and which in no wise is connected with the obligations stipulated for the contracting parties in the treaty of the 20th of September, 1870.

So far as a number of data contained in the esteemed note of the 31st of May, 1900, Foreign Office No. 72, which has been received in the meantime, are concerned, and which are intended to serve as proof that Fischer received his naturalization in the United States in bona fide and not in a certain degree merely pro forma, it may be stated in reply that in those fundamental, and, as it were, prophylactic, considerations which, as was indicated above, were decisive in the removing of the frequently mentioned individual from Austrian territory, no weight was attached to the ascertaining and fixing of the personal intentions which may have led him to emigrate from the monarchy and caused him to seek citizenship in the United States.

The offensive impression and the corruptive influence of the action under discussion lie in the extreme conditions under which Fischer, who was still pledged to duties to the State in this country, accomplished his naturalization in America, and also in his return here to settle in Austria. It is immaterial whether the intention to return, after avoiding military duty, was already formed in his mind, as it is in the majority of such cases, or whether the intention to return, perhaps originally nonexistent, was formed at a later date.

The undersigned avails himself at the same time of this opportunity to renew, etc.,

Szecsen.