Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 2, 1902

Mr. McCormick to Mr. Hay.

United States Legation,
Vienna, February 11, 1902.

No. 67.]

Sir: With reference to a personal letter which Count Lützow informs me that he wrote to Mr. Hengelmüller a short time ago, asking him to ascertain “unofficially” how the Government of the United States would view the abrogation by the Government of Austria-Hungary of the naturalization treaty between the two Governments of September 20, 1870, I have the honor to report that that letter was the direct result of my efforts, following closely upon those of my predecessor, to arrive at an understanding with the minister for foreign affairs as to the treatment to be accorded to United States passports and their bearers, on the lines laid down and formulated in your instruction No. 59 to Mr. Harris, and bearing date January 5, 1900, as follows:

(a) The proper Austro-Hungarian officials shall be again instructed to treat United States passports as prima facie evidence of the citizenship of the bearer.

(b) In case reasonable ground appear to suspect fraud in the procurement or use of a United States passport, it may be submitted to the United States legation for examination, with a statement of the ground for suspicion.

(c) If, by reason of unfamiliarity with the English language or otherwise, the local authorities of Austria-Hungary may be uncertain whether a presented American passport is in fact such, they may ask of the nearest United States consul his opinion as to its character and purport. In giving such an opinion no indorsement of any kind will be made by the consular officer upon the passport, and no fee will be charged.

(d) If the ordinary consular visa be desired upon an American passport, it will be affixed by the proper consular officer upon payment of the prescribed fee of $1 or its equivalent.

To the above I added a fifth article as follows—

When for any reason the local authorities shall consider it necessary to take possession of the naturalization certificate or passport, or both, a receipt shall be given for them wherein shall be stated the reason for such action—

in my note to the foreign office alluded to below. Mr. Harris had been unable to arrive at any well-defined understanding on the subject, and Mr. Herdliska, who followed it up while acting as chargé d’affaires during my absence last summer, was equally unsuccessful.

I made use of the case of Josef Janco, covered by my No. 53 to the Department, as the ground upon which to raise the question so long at issue, viz, the prima facie evidence of a passport as to the nationality of its bearer and the respect to which that document is entitled, maintaining in a conversation which I had with Count Lützow the position so clearly and well set forth in the instruction above referred to that “it (a passport) must be assumed to be prima facie valid until shown to be otherwise,” and that local officials should have such instructions as would lead to a clear knowledge on their part as to the character of this document and of the treatment to be accorded to it and its bearer. Count Lützow frankly acknowledged the first part of my contention, and as frankly stated as to the second part that the attitude of the department of military defense stood in the way of the issuance of instructions on the lines laid down in your No. 59 above referred to, and for the first time formulated and put forward as a basis for the desired instructions to local officials in my note, copy of which I inclose herewith for your information.

In the course of our interview Count Lützow asked if some method could not be devised by which this Government could be officially notified of the naturalization of its former subjects when they availed themselves of the right to take that step accorded by the treaty. My reply was that in my opinion any method that could be devised would prove too cumbersome in practice to be at all satisfactory, which opinion I repeated in a memorandum of January 28, copy of which I also inclose herewith, adding that “in discussing such a method we are getting away from the real issue, viz, the prima facie evidence of the passport as to the citizenship of its bearer, and the rights to which he is entitled thereunder,” as well as “leaving a simple method of procedure—the one suggested in my note—which would, if adopted, decrease the number of cases giving rise to correspondence between the ministry for foreign affairs and this legation to a minimum, and in no way injuriously affect the position of the Imperial and Royal Government in individual cases not falling unquestionably within the terms of the treaty.”

I added:

It seems to me also that after the lapse of thirty years local officials should be informed as to the provisions of a treaty which has a direct bearing upon the discharge of their duties, which duties, when they apply to citizens of other countries, cease to be purely local in their nature and must be performed with due respect and consideration for the rights of citizens of other countries whether these rights are obtained by specific; treaty enactment or otherwise.

The attitude of the department of military defense is the crux of the situation, and it has stood between this Government and the full and proper execution of the terms of the treaty ever since that document nominally took effect.

This is proven by the “circular,” translation of which was sent to the Department by Mr. Herdliska, while acting as chargé d’affaires, in his No. 12 of July 30 last, and which was based upon a law passed July 27, 1871, within one year after the signing of the naturalization treaty.

In other words this “law” contravening the terms of the treaty has been in existence throughout the life of the treaty, and stands between the ministry for foreign affairs and any agreement on the lines of the Department’s instructions and of my note and memorandum.

In my opinion this is a favorable time to gain at least a radical modification of the procedure of local officials and the abandonment of actual banishment except in extreme cases which present good ground for that action in themselves should it prove wise, after further discussion, not to insist upon the letter of the treaty and the issuance of instructions in full accordance therewith.

This is a favorable time because it follows closely upon the newspaper discussion of the attitude of the various European Governments just previous to and immediately following the outbreak of the Spanish-American war, and this Government does not now wish to be behind its neighbors in its manifestation of friendship, as it has already proven in a way which I had the honor to formerly make known to you a short time ago.

I have, etc.,

Robert S. McCormick.

[Inclosure 1.]

Mr. McCormick to Count Goluchowski.

United States Legation, Vienna, January 7, 1902.

Your Excellency: I have the honor to call your excellency’s attention to the case of Josef Janco, a naturalized American citizen, of Austro-Hungarian birth, the long detention of whose certificate of naturalization and passport taken from him by the authorities at Styavink, Hungaria, resulted in great hardship to him and narrowly escaped having more serious consequences.

Mr. Janco arrived at Styavink on a visit to his parents on or about July 7, 1901. He immediately reported his arrival to the local authorities, thus evincing a desire to conform to all that the law required, and to establish the fact that his naturalization had been secured in conformity with the terms of the treaty of September 20, 1870. He claims that one Hahn, a notary, to whom he exhibited his papers, demanded the sum of 50 florins, which he, Hahn, stated was for the use of the military fund. This sum he refused to pay, and three days later was arrested at his father’s house at 4 o’clock in the morning and compelled to accompany the gendarme to Velka Bytka; the gendarme insisting upon his going on foot by a circuitous route, but finally allowing him, Janco, to hire a conveyance and take the direct road.

Mr. Janco states that his treatment by the gendarme was violent, and the language used by the latter with reference to his passport and certificate of naturalization of a character which made it impossible for him to write it.

At Velka Bytka he was placed in prison and kept there for two hours, and then brought before a judge by the name of “Domanicky,” to whom he delivered up his passport and certificate of naturalization. After some consideration the court discharged him, but retained his passport and naturalization papers, and although he made several requests that they be returned during his sojourn in Styavink, he was finally compelled to return to the United States without them.

The result of this failure to return his papers before his departure for the United States was that he was held at Ellis Island as an immigrant at considerable expense and great inconvenience until he could establish the fact that he had been naturalized, and was entitled to enter the United States as a citizen. The want of his papers in the absence of other evidence of his naturalization might have resulted in his being refused admittance to the United States.

I have caused some investigations to be made at Styavink through which I have learned that such evidence as could be obtained there is in denial of Janco’s statement as to his treatment, but sufficient remains to demonstrate the ignorance of many local officials as to the character of, and the respect to which, a passport is itself entitled, and the consideration to which it entitles its bearer unless he has forfeited that consideration by some act of his own.

I am therefore led, your excellency, to ask if the understanding as to the acceptance of American passports as prima facie evidence of the citizenship of their bearers without distinction between native and naturalized citizens, which has been arrived at in part, can not be made more complete and formulated in terms mutually acceptable.

With the understanding thus completed and formulated it will open the way for the issuance of instructions in conformity thereto to the local officials in the realms of His Imperial and Royal Majesty, on the one hand, and to the consular officers of the United States within its borders on the other, who working together in harmony will be able to relieve this legation and His Imperial and Royal Majesty’s ministry for foreign affairs of much detail work which at times is of an excessively annoying character.

This understanding might be briefly formulated as follows:

(a) A passport shall be accepted as prima facie evidence of the citizenship of the bearer.

(b) In case reasonable ground appear to suspect fraud in the procurement or use of a passport it is to be submitted to this legation for examination, with a statement of the grounds for suspicion.

(c) If, by reason of unfamiliarity with the English language or otherwise, the local authorities of Austria-Hungary may be uncertain whether a presented American passport is in fact such, they may ask of the nearest United States consul his opinion as to its character and purport. In giving such an opinion no indorsement of any kind will be made upon the passport and no fee will be charged.

(d) If the ordinary consular visa be desired, it will be affixed by the proper consular officer, upon payment of the prescribed fee of $1 or its equivalent 5 crowns.

(e) When, for any reason, the local authorities shall consider it necessary to take possession of the naturalization certificate or passport, or both, a receipt shall be given for them, wherein shall be stated the reason for such action.

Had such a receipt been given to Mr. Josef Janco he would not have suffered the detention on Ellis Island, in New York harbor, above alluded to.

I beg your excellency’s leave to say that I am unable to see the necessity for retaining documents of so great value to their holders, as their certificates of naturalization and passports, for so long a time as in a number of cases which have come under my observation; none more notably than the case under discussion, viz, that of Mr. Josef Janco, whose passport was taken from him in the first half of the month of June and returned to his father near the end of December, after over seven months had elapsed. Nor can I see wherein any good purpose can be served by placing a man under arrest on the suspicion of having violated a law when he places himself voluntarily within that law’s jurisdiction, which fact should be sufficient to establish a presumption in his favor.

Under such circumstances it seems superfluous to say that without specific grounds the local authorities have absolutely no reason to fear that having voluntarily come within their jurisdiction, an object of their suspicion will flee from its boundary before they have time to satisfy themselves as to whether or not he has violated the military or any other law. When in addition to this presumption in his favor he is the bearer of a certificate of naturalization as an American citizen or of an American passport, or both, no ground is left for his being deprived of his freedom, or the evidences of his American citizenship, unless that ground can be found in the civil or criminal records of the district whence he emigrated, or in charges preferred against him in proper and legal form, no matter from what quarter.

My Government would be greatly pleased if the understanding, which has practically been reached on the lines above indicated, could be formulated in terms mutually acceptable, and such instructions issued to the local authorities as would lead to the cessation of the annoying incidents which form the subject of so large a part of the official correspondence between the two Governments.

I avail myself, etc.

Robert S. McCormick

[Inclosure 2.]

Memorandum from United States legation to Austro-Hungarian Foreign Office.

With reference to my note of the 7th instant on the subject of the acceptance by the local authorities of Austria-Hungary of American passports as prima facie evidence of the citizenship of their bearers, when presented by former subjects of this Monarchy on returning hither for any purpose, and the suggestions contained therein as to the method to be pursued by the local authorities should they not be fully informed as to the character of this document or entertain any doubt as to the bearer being the person described therein and entitled to the protection afforded thereby; and with reference to the conversation which I had with Count Lützow on this subject and the suggestion made by him tentatively to the effect that the difficulties constantly arising between local officials and the naturalized citizens, above referred to, might be avoided if some method were devised whereby notice could be sent, through an official channel, of the naturalization of all former Austro-Hungarian subjects under the terms of the treaty of September 20, 1870, and their names stricken from the rolls of those liable for military service in advance of their possible return here for any purpose; I now have to say that after careful consideration I do not believe that any method could be devised on the lines which Count Lützow suggested, which would not be found too cumbersome in actual practice to make its adoption desirable.

Moreover, in discussing such a method we are getting away from the real issue, viz, the prima facie evidence of the passport as to the citizenship of its bearer, and the rights to which he is entitled thereunder.

We are also having a simple method of procedure, the one suggested in my note first above referred to, which would, if adopted, decrease the number of cases giving rise to correspondence between the ministry for foreign affairs and this legation to a minimum, and in no way injuriously affect the position of the Imperial and Royal Government in individual cases not falling unquestionably within the terms of the treaty.

Speaking from my own short experience and from an examination of the records of this legation, I would say that cases of the character last above referred to are of such rare occurrence that they are hardly worthy of consideration in the discussion of a modus operandi, the adoption of which is so desirable for the reasons already set forth.

It seems to me, also, that after the lapse of thirty years, local officials should be informed as to the provisions of a treaty which has a direct bearing upon the discharge of their duties, which duties, when they apply to citizens of other countries, cease to be purely local in their nature, and must be performed with due respect and consideration for the rights of the citizens of other countries, whether these rights are accorded by general international agreement or principle, or by specific treaty enactment.

I would therefore beg to suggest that all local officials—civil and military—and courts, having jurisdiction in such cases as those under discussion, be furnished with copies of the treaty of September 20, 1870, between the Government of the United States of America and His Imperial and Royal Majesty, the Emperor of Austria, Apostolic King of Hungary, King of Bohemia, etc., with instructions to respect its provisions in all cases where there is not evidence tending to prove that its stipulations have not been complied with.

When, for reasons set forth in my note first above referred to, local officials may deem it necessary to take up a passport, or to question the right of its bearer to its possession, the proceeding to be as outlined in that note.

United States legation at Vienna, January 28, 1902.