Mr. Harris to Mr.
Hay.
United
States Legation,
Vienna, June 27,
1900.
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.,
[Inclosure No. 1.]
Mr. Harris to
Count Lützow.
United States Legation,
Vienna, May 31,
1900.
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.,
[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.,