Mr. Thomas to Mr.
Hay.
Legation of the United States,
Stockholm
,
December 31,
1901.
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.,
Mr. Thomas to
the minister for foreign
affairs.
[Inclosure 1.]
Legation of the United States,
Stockholm
,
September 3, 1901.
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.,
Mr. Von Otter
to Mr. Thomas
.
[Inclosure
2.—Translation.]
Royal Foreign Office,
Stockholm
,
December 27,
1901.
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.,
Mr. Steen to
Royal Foreign Office
.
[Subinclosure.—Translation.]
Christianiå
,
December 21,
1901
.
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.
