Mr. Thomas to Mr. Hay.

No. 236]

Sir: Referring to your instruction No. 118, of August 20 last, setting forth the case of Johannes P. Hoiland, a naturalized American citizen, born in Norway, who. had asked the Department to obtain redress from the Government of Norway for alleged unlawful arrest and imprisonment, I have the honor to inform you that in compliance with your directions I at once, on September 3, addressed a note to the minister for foreign affairs, a copy of which herewith inclosed, giving the facts in the case as detailed in your instruction, and requesting to be informed of the attitude of the Government of Norway in the premises.

I am now in receipt of a note from the foreign office, dated December 27, a copy of which, accompanied by a translation, is inclosed, transmitting copy of a letter from the minister of the interior of Norway, which I inclose in English translation.

In this letter his excellency Mr. Steen gives a full and exhaustive history of the case, from which it appears that Hoiland, after his return to Norway, in December, 1897, was enrolled for military service and notified to appear at the recruit school at Maldesletten on May 2, 1899.

He did not appear; neither did he prove to the proper military authorities who had ordered him to appear that he was an American citizen.

On his not appearing, the commander of the company (captain) at the recruit school charged the sheriff at Time, in May, 1899, to visit Hoiland in person and demand his explanation as to the reason for his absence, and to request him to produce his American citizenship papers as proof in case he had such papers. Hoiland told the sheriff that he was an American citizen, but refused to produce or show the military authorities his citizen papers; he said he had shown them to the police in connection with the fine case, and he would not now show them to any more Norwegian authorities.

It was after this that Hoiland, on June 7, 1899, was transported to the Malde drilling grounds and placed under arrest. The next day, June 8, he showed his American citizen papers, after which he was immediately released.

The opinion is expressed that Hoiland has only himself to blame for his arrest and imprisonment, since these were caused by his default to [Page 491]show his American citizen papers on request by the proper military authorities.

It is also held that, although the treaty between the United States and Sweden and Norway of May 26, 1869, protects naturalized American citizens of Norwegian birth returning to Norway from military service, unless they again become domiciled in Norway, it is nevertheless incumbent on such Norwegian emigrants to prove themselves to be American citizens whenever officially requested to do so by the proper Norwegian authorities.

In fact, that if such persons have the right to be free from military service because they are American citizens, they have also the duty laid upon them of proving such citizenship.

In this connection I beg to call your attention to the printed notice issued by the Department of State and given to naturalized American citizens of Norwegian birth on their applying for a passport.

Paragraphs 3 and 4 of this notice read as follows:

A naturalized American who performed his military service or emigrated when he was not liable to it, and who infracted no laws before emigrating, may safely return to Norway.

He must, however, report to the conscription officers, and, on receiving a summons, present himself at the meetings of the conscripts in order to prove his American citizenship.

It would seem that if Hoiland had acted in accordance with the plain and wise advice given by the Department he would have saved himself all the trouble of which he complains.

I have, etc.,

W. W. Thomas, Jr.

Mr. Thomas to the minister for foreign affairs.

[Inclosure 1.]

Excellency: I have the honor to inform your excellency that the Department of State has been asked to obtain redress from the Government of Norway for Johannes P. Hoiland, a naturalized American citizen, for alleged unlawful arrest and imprisonment.

The facts, as stated, appear to be as follows:

Hoiland was born in Norway, December 23, 1861, and emigrated to the United States in April, 1883, when he was 21 years and 4 months old. He was naturalized in the United States in March, 1896. In December, 1897, he returned to Norway for a visit; in November, 1898, he was notified that he had been fined 20 kroner for failure to be present at a military meeting, and informed that he could not return to America until the fine was paid. He refused to pay the fine on the ground that he was a citizen of the United States and did not have to do military duty in Norway. On June 7, 1899, he was arrested for declining to drill as a soldier and held under arrest until the next day, when he was released. In August, 1899, it seems that proceedings in regard to the fine were taken in the courts, by which it is said the fine was raised to 32 kroner, but on appeal by Hoiland to the supreme court, the judgment of the lower court was on March 8, 1900, reversed on the ground that Hoiland was a citizen of the United States and had duly notified the authorities of his intention to emigrate. He was permitted to leave Norway, which he did on March 17, 1900.

It seems that Hoiland had no written emigration permit, but it is said that under the laws of Norway a written permit was not necessary, as he was at the time of his emigration only 21 years and 4 months old. It is also said that at the time of his emigration Hoiland had not drawn lot as to whether he should belong to the regular army or to the reserves, and under the laws of Norway one may, before he has drawn such a lot, emigrate upon a mere notice to the commissioner of his district or parish of his intention to do so. An alleged original statement from one who was formerly such commissioner is transmitted to the Department, in which it is stated [Page 492]that Hoiland notified him of his intention to emigrate to America. This statement is dated Westlye, June 22, 1901, and signed Soren Westlye, formerly district commissioner.

Hoiland emigrated from Stavanger, Norway. The place of his arrest was Malde, a military camp near Stavanger.

I should be pleased to be informed of the attitude of the Government of Norway upon this case, with a view of reporting the same to the Department of State.

I beg, etc.,

W. W. Thomas, Jr.

Mr. Von Otter to Mr. Thomas.

[Inclosure 2.—Translation.]

Mr Minister: By a note, dated the 3d of October (September) last, you have been pleased to express the desire to be placed in position to report to your Government the attitude of the Government of Norway upon the treatment which Johannes P. Hoiland, an American citizen, has undergone at the hands of the Norwegian authorities on account of his refusal to perform military service in Norway.

Having requested the opinion of the competent Norwegian authorities, I have the honor to transmit to you in reply a copy of a letter which the minister of the interior at Christiania has addressed to me, and in which his excellency, Mr. Steen, after having recounted the details of the affairs and in proving that Hoiland has himself caused his arrest by his refusal to legitimate himself as an American citizen, expresses the opinion that an emigrant who, on his return to Norway should, according to the treaty with the United States of May 26, 1869, be free from military service in Norway, has nevertheless the duty of proving his American nationality before the competent authorities.

I am convinced that you will concur in this opinion.

Please accept, etc.,

F. W. Von Otter.

Mr. Steen to Royal Foreign Office.

[Subinclosure.—Translation.]

The Royal Foreign Office,
Stockholm:

In a communication of September 10 last the Royal foreign office has transmitted to this department a copy of a note from the American minister at Stockholm, elated September 3, in which information is requested regarding the attitude of the Norwegian Government with respect to the fining and imprisonment of an American citizen, Johannes P. Hoiland, for omitting to appear at the conscription meeting and to present himself for military service in this country.

In consequence thereof, after having received the opinion of the war department in the matter and the explanations procured by said department from the competent conscription authorities, we have the honor to state as follows, viz.:

It is true, as stated in the American minister’s note, that the said Johannes P. Hoiland was born in this country in 1861, and that he emigrated to America in April, 1883, before the holding of the conscription meeting in his place of domicile (Time district) in the aforesaid year. It is also true, that, according to Nowegian law, it is not required that conscripts who, as was the case with Hoiland, emigrate from the Kingdom before the holding of the conscription meeting in their place of domicile in the calendar year in which they reach the age of 22, shall have express permission to emigrate, but it is sufficient that they, previous to their departure, have made a declaration of their emigration to the alderman (rodeforstander) of their ward and the commissary of their district, and from the latter have received a written certificate that such a declaration has been made.

This obligation to make such declaration was, however, not fulfilled by Hoiland. It is true that the American minister has stated that Hoiland has presented a certificate dated June 22, 1901, issued by Soren Westbye, former district commissary, to the effect that Hoiland had made declaration to him of his (Holland’s) emigration before he left the country in April, 1883; but the proper conscription board has now informed [Page 493]this department that Soren Westbye was not district commissary for Time in 1883 (his time of office as such had already expired the preceding year), and that opposite Holland’s name in the muster roll for his year’s class (which roll is kept by the military roll keeper, who is also the chief of the district commission, registering all young conscripts, from confirmation age up) it is expressly remarked that he had emigrated without proper declaration.

The conscript law of February 28, 1877, section 29, provides that every emigrated Norwegian subject who returns to this country must at once report to the proper district commission. This was not observed by Hoiland on his return in December, 1897, and furthermore, he can not be considered in any other way to have informed any Norwegian authority that he had become an American citizen.

At the district meeting for Time on April 12, 1898, it was reported to the roll keeper that Hoiland had returned. As a consequence of this, the roll keeper charged the proper alderman (rodeforstander) to call him to appear at the conscription meeting for Time, which was to be held on August 4 of the same year, in order that his conscription duties to Norway might be investigated and determined. It seems, however, as if the alderman (rodeforstander) has neglected thus to call him, and consequently Hoiland did not appear at the conscription meeting. The conscription board, supposing that Hoiland had been called to appear, imposed a fine upon him of 20 kroner for absence, and also enrolled him (as one who had, previous to his departure for America, neglected his declaration duty) for full military service, providing that he, on appearing for drill, should be found serviceable. Hoiland was then informed both of the imposition of the fine and the enrollment.

When the imposition of the fine was thereafter brought to his knowledge by the civil authorities, he refused to pay the fine, stating as his reason that he was an American citizen. The Norwegian authorities, supposing that he had been expressly ordered to appear at the conscript meeting to account for his conscript duties and that he, even if he were an American citizen, was obliged, after being ordered, to appear at said function to prove this, then took legal action against him to collect the fine. Hoiland was also sentenced by the inferior court, but the supreme court acquitted him of the imposed fine on March 8, 1900, because it might be supposed, from the evidence then produced, that he had not received any order to appear at the conscription meeting, such as the alderman (rodeforstander) had been charged to serve on him, and because he, after it had been shown that he was an American citizen, was regarded as not obliged to appear without such a special order.

As a consequence of the other action against Hoiland, in accordance with the aforesaid decision of the conscription board (his enrollment for military service), he was charged by the proper military authorities to appear at the recruit school at Madesletten on May 2, 1899. He did not appear, however; neither did he prove to the proper military authorities, who had ordered him to appear, that he was an American citizen.

On his not appearing, the commander of the company (captain) at the recruit school charged the sheriff at Time, in May, 1899, to visit Hoiland in person and demand his explanation as to the reason for his absence, and to request him to lend his American citizen papers as proof, in case he had such papers. Hoiland told the sheriff that he was an American citizen, but he refused to lend or show the military authorities his citizen papers; he said he had shown them to the police in connection with the fine case, and he would not show them to any more Norwegian authorities.

It was after this that Hoiland, on June 7, 1899—thus previous to the aforesaid acquittal by the supreme court of the fine imposed upon him for omitting to appear at the conscription meeting—was transported to the Malde drilling grounds and placed under arrest. The next day, June 8, he showed his American citizen papers, after which he was immediately released.

The conscription board has, in connection with this information, remarked that Hoiland may blame himself for being subjected to the treatment of which he has now complained, for if he had shown greater willingness to prove his relation to the United States he would have avoided being arrested.

The general war commissary has stated that he must declare himself in unison with this opinion of the conscription board, and has in this connection stated that since the treaty with the United States of May 26, 1869, protects returning emigrants who have become American citizens from conscription unless they again become domiciled here in the Kingdom, it must, in his opinion, be inevitable that such returning emigrants are obliged to prove their American citizenship to every Norwegian authority who officially requires them to do so. Furthermore, the general war commissary has called attention to the fact that Hoiland was acquitted of the fine because it could not be considered proved that he had received any call to appear at the conscription meeting. He had, however, received an order to appear at the opening of the recruit school, on May 2, 1899, and he must therefore submit to being treated as [Page 494]one obliged to appear, until he, on showing his American citizen papers, prove that he, as an American citizen, had a right to be free.

Also the war department has stated that, with respect to the information here given, it finds that Holland’s transportation to the Malde drilling grounds and arrest may be ascribed to his refusal to prove himself not obliged to do military service, the war department, like the general war commissary, presenting as its opinion that returning emigrants, who, in consequence of the treaty with the United States of May 26, 1869, are exempt from conscription in this Kingdom, are obliged to prove themselves to be American citizens whenever this is demanded by the proper Norwegian authorities.

This department also finds that it must support this opinion.

The American minister in Stockholm should be informed of the foregoing.

Steen.