Mr. Hale to Mr. Hay.

No. 26.]

Sir: For the information of the Department, I have the honor to inclose herewith a copy of Mr. McCormick’s note,a No. 44, of January 7, 1902, to the ministry for foreign affairs, and translation of a note of the 14th instant in reply thereto.

Mr. McCormick in the above note made use of the case of one Josef Janco (brought to the notice of this embassy in the Department’s No. 19 of November 19, 1901, and upon which he reported in his No. 53 of December 29, 1901,) as demonstrating the ignorance of many local officials as to the character of a passport and the respect to which such a document and its bearer are thereby entitled.

Mr. McCormick then submits the following suggestions to the consideration of Count Goluchowski, concerning the prima facie evidence of the citizenship of a bearer of an American passport:

1.
A passport shall be accepted as prima facie evidence of the citizenship of the bearer.
2.
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.
3.
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.
4.
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.
5.
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.

And closes by saying that if an understanding formulated upon the above lines could be reached, and adequate instructions issued to the local authorities, the annoying; incidents, occasioned by the latter’s ignorance, which form the subject of so large a part of the official correspondence between the two Governments, would cease.

[Page 57]

The ministry for foreign affairs, in reply to the above, and after denying the truthfulness of many of Mr. Janco’s allegations, informs the embassy that the Royal Hungarian ministry of the interior, in compliance with the proposition of article 5 in Mr. McCormick’s note above quoted, has seen fit to instruct the proper authorities within its jurisdiction to furnish the bearer of an American certificate of naturalization or of a passport, whenever these documents may be taken from him by said authorities, with a certificate or receipt setting forth the reasons which render such seizure necessary.

This regulation, if properly complied with upon the part of the local authorities, will certainly greatly lessen the number of complaints from naturalized American citizens formerly subjects of this Monarchy, as the majority of emigrants to the United States from this Empire are natives of Hungary.

I have, etc.,

Chandler Hale.
[Inclosure.—Translation.]

Minister for foreign affairs to United States Embassy.

66326/7.]

Relative to the esteemed note of January 7, 1902, No. 44, concerning the complaint made by the United States citizen Josef Janco, on account of the inexcusably long detention of the naturalization papers taken from him by the Royal Hungarian authorities at Styavnik, the ministry for foreign affairs has not failed to make proper inquiries, requesting at the same time that investigation be made to ascertain the cause of such delay and with whom the fault lay.

The Royal Hungarian ministry of the interior now makes known that the accusations made by Josef Janco are not correct.

The judge of the superior court of the district of Bittse has justified his conduct and his proceedings in this case, and official investigations have shown that the statement made by Josef Janco against the notary of the community of Styavnik is not in accordance with the truth.

As far as the part in this above-mentioned esteemed note is concerned which treats of the principles which should be observed by the Austro-Hungarian authorities when examining American documents which prove the identity of citizenship, the Royal Hungarian ministry of the interior, in compliance with the proposition made under article 5, has thought proper to instruct the authorities within its jurisdiction to furnish to the holder of an American naturalization paper or passport, when these latter have been taken away from him by the authorities, a certificate setting forth the reason which rendered such seizure necessary. In connection with this the Royal Hungarian ministry points to the fact that when American naturalization papers are being examined the rules adopted on former occasions are strictly adhered to, as already explained in the note of September 29, 1900, No. 55461/7.a

The ministry of foreign affairs has the honor of bringing the foregoing to the knowledge of the embassy of the United States of America.


For the minister:
Mérey.
[Inclosure in dispatch No. 139, October 15, 1900, from Austria-Hungary, printed in connection with the foregoing.—Translation.]

Count Lützow to Mr. Herdliska.

55461/7]

In the esteemed note of date the 17th of September last, F. O., No. 105, the honorable chargé d’affaires of the United States of America, Mr. Charles V. Herdliska, [Page 58] has thought fit to draw attention to an apparent contradiction, contained in the note of this ministry of the 14th of August, of the current year, No. 46561/7, inasmuch as, although in the first place the prima facie validity of American passports and documents of naturalization (in so far as these papers do not bear the external signs of forgeries or present other invalidating characteristics) is in principle therein acknowledged, the right is nevertheless claimed—as regards those American citizens who having formerly been Austrian or Hungarian subjects emigrate to America without having fully discharged their military duties and after the acquisition of American citizenship return to this country (even when the papers of legitimation with which they are furnished are perfectly regular)—for the competent authorities of this land to institute inquiries as to whether the acquisition of American citizenship by the individuals in question has been made in accordance with the provisions of the treaty of the 20th of September, 1870; that is to say, whether in the circumstances of these individuals all the conditions of Article 1 of said treaty are complied with.

In answer to this the Imperial and Royal ministry of foreign affairs has the honor most respectfully to draw the attention of the honorable chargé d’affaires of the United States of America to the fact that the note of this ministry, above referred to, does not go beyond the simple assertion of the following position: The Governments in Vienna and Budapest find themselves, in principle, in perfect agreement with the Government of the United States of America in that they, on their side, recognize the prima facie validity of American papers of legitimation as proof that the status of American citizenship asserted by such papers for their owner is in fact his due and legal status; with this declaration of principle must, however, be associated the clear and emphatic statement that, as regards persons who have emigrated from the Monarchy and acquired American citizenship before the discharge of their military duties, both the Governments of the Monarchy must reserve to themselves the right to examine into the circumstances under which the persons in question have become citizens of the United States of America.

This recognition in principle (as expressed in the above-mentioned note of this ministry) of the prima facie validity of American papers of legitimation is, according to the view taken by this ministry, by no means confined to the documents of such persons as have been American citizens from their birth, but includes also those of naturalized citizens of the Union, persons of originally foreign nationality—therefore of Austrian or Hungarian origin among others—whose American citizenship is without doubt prima facie proved by properly executed documents of this sort.

The simple fact, however, that a person originally of Austrian or Hungarian nationality, who has become naturalized in the United States of America, is in possession of a regular and therefore prima facie valid American passport and papers of legitimation, can by no means be regarded as affording an absolute, incontestable and undoubted guaranty that the person in question, in acquiring naturalization in the United States, has proceeded in accordance with the provisions and assumptions of the treaty of 1870.

For in this convention certain positive and exactly defined conditions are set forth, upon the fulfillment of which is made to depend whether a former subject of the Monarchy, who has been naturalized in America, is to be recognized as an American citizen within the meaning of the treaty, and whether the rights secured by treaty to American citizens are to be accorded to such a person. Further, it is also in this very treaty expressly provided that in some specified cases a former subject of Austria or Hungary—even though his naturalization in America be perfectly regular and in order—shall, by the authorities of his original domicile, continue to be held answerable before the competent court of criminal jurisprudence for certain military offenses committed in the time prior to his emigration.

It is therefore clear that the authorities of this country must of necessity have the right, in a special case such as one of those above referred to, by means of an official inquiry into the special circumstances attaching thereto, to inform themselves with certainty (and in this matter the simple possession of American papers of legitimation, whether passport or certificate of citizenship, does not of course afford even prima facie evidence) as to whether the material conditions, which the Treaty of 1870 attaches to the recognition by the authorities of this country of the American citizenship, acquired by naturalization, of a former subject of the Monarchy have in fact been complied with, such compliance constituting the condition upon which, alone, the enjoyment of the rights guaranteed by treaty can be conceded to the naturalized person in question.

To the reservation contained in the note of this ministry of the 14th of August last, no significance beyond that here explained is therefore to be attached, it being simply an assertion of the right of the authorities of this land (a right which they have also invariably asserted), in individual cases, in which it is in their opinion necessary to assure themselves by inquiry as to whether in the naturalization of a [Page 59] subject of the Monarchy in the United States of America the provisions of the treaty have in fact been duly and fully complied with.

The claiming of this right for the authorities of this land does not, according to the view taken by this ministry, in any degree derogate from the general recognition in principle of the prima facie validity of American documents of legitimation, seeing that these latter assert nothing more than that their possessor is, from the point of view of the legislation of the United States of America, to be regarded as an American citizen. Such papers can not, on the other hand, be regarded as incontrovertible documentary evidence proving that in each and every case naturalization has proceeded in conformity with all the treaty provisions bearing on this subject.

An inquiry of this sort, instituted by the authorities of this land, can not therefore, as has been shown, be held to involve—as the honorable chargé d’affaires of the United States of America seems to imply—anything approaching an examination or verification by these authorities of papers of legitimation emanating from the competent American authorities, in respect of their legality or validity, from the standpoint of American legislation.

Such an inquiry has, on the contrary, no other object than the attainment of certainty as to whether, in some special case, the provisions of the treaty between the Monarchy and the United States of America have been duly observed.

That the instituting of such an inquiry, which is, as has been shown, confined to ascertaining whether those treaty provisions have been complied with, upon which the recognition of an act of naturalization has been made dependent, can not be prohibited to the authorities of this land would seem to be beyond all doubt, in view of the fact that the matter dealt with is the fulfillment of the stipulations of treaty; it being undeniably within the competence of either party to a treaty to assure itself, in every separate instance as it arises, as to the due observance of the provisions of that treaty by the other party thereto.

That in cases such as those in question circumstances may occur in which an inquiry of this sort can not be regarded as superfluous, may be illustrated by quite a recent example in which the Imperial and Royal ministry for foreign affairs in its note of the 16th of June last, No. 34101, basing its proceeding upon information furnished by the United States legation itself, had the honor to draw attention to the case of a certain Franz Rath, to whom American citizenship had apparently been accorded (by means of a certificate of naturalization issued by the city court of Utica) after a shorter period of residence in the United States of America than that stipulated for, namely, five years, by the terms of the treaty.

Further, in the esteemed note of the 26th of February last, No. F. O. 52, the envoy extraordinary and minister plenipotentiary, Mr. Addison C. Harris, stated that he had himself occasionally had to cancel American passports, as having been illegally issued.

While the Imperial and Royal ministry for foreign affairs believes that it has on the one hand succeeded in showing in the course of the above observations that its note of the 14th of August last is in no degree open to the charge of adopting mutually contradictory positions, it regards it, on the other hand, as a matter of course and self-evident, and not needing the support of such arguments and special considerations as have been adduced in this connection, that the right must of necessity be conceded to the authorities of this country when instituting an inquiry such as has been treated of in the above, and for the purposes of such inquiry not only to examine the documents of naturalized American citizens who have returned to the Monarchy, but also when necessary to retain temporary possession of the same, in order that they may have in hand such concrete data as are likely to prove essential to the prosecution of any further examination that may be desirable, as well as a positive documentary basis for the due eliciting of the actual facts of the case occupying their attention; and this necessity is specially likely to arise when the matter in hand includes the removal of such a person’s name from the army lists of Austria-Hungary.

This declaration of the true reasons and objects by which the authorities of this country are influenced, when, as occasionally happens, they retain for a time possession of the American papers of legitimation of naturalized citizens of the Union before returning them to their owners, should certainly be sufficient to prove that such temporary retention can not fairly be regarded either as an infringement of the naturalization treaty or as inconsistent with the general attitude to this subject, lately adopted by the Imperial and Royal ministry for foreign affairs.

It having, however, been pointed out by the honorable chargé d’affaires of the United States of America that in the return to their owners of passports and other documents of legitimation taken from naturalized American citizens very considerable delay not infrequently occurs, the Imperial and Royal ministry for foreign affairs is by no means disposed to call in question the inconveniences that may, under some circumstances, result for the naturalized American citizen in question from the [Page 60] unduly prolonged retention of these documents. The Imperial and Royal ministry for foreign affairs has accordingly, in connection with the four cases particularized in the esteemed note of the 10th of September last, No. F. O. 101, in which it is asserted that the papers of legitimation of American citizens were retained for an unreasonably long period before being returned to their owners, drawn the attention of the ministers of the interior in Vienna and in Budapest to this administrative shortcoming, with an earnest representation that whatever is possible be done with a view to its correction.

In compliance with this representation, the Imperial and Royal ministry of the interior has already taken occasion to address to the administrative authorities within the sphere of its jurisdiction an injunction, impressing upon them as an imperative duty, in all cases in which it appears necessary for the attainment of the ends above intimated, to retain temporary possession of papers of legitimation belonging to naturalized American citizens who return to the Monarchy, to withhold such documents from their owners only so long as may be absolutely necessary; and, further, that in all dealings with cases of this sort the utmost possible dispatch shall at all times be used.

With reference to the desire expressed in connection with this question by the honorable chargé d’affaires of the United States of America to be put in possession of copies of the orders issued to the authorities of this country, and to which reference was made in the note of this ministry of the 14th of August last, No. 46561/7, the Imperial and Royal ministry for foreign affairs regrets not to be in a position to comply therewith, it being a general principle of universal application here that the orders and instructions issued to the administrative authorities of this country, and intended for their use exclusively in the discharge of their official duties, are not communicated to foreign governments.

At the same time, the Imperial and Royal ministry for foreign affairs does not hesitate to characterise as inconsistent with these very orders the proceeding—commented upon by the honorable chargé d’affaires of the United States of America—of the sheriff (bezirkshauptmann) of Rapczyce, who, citing in justification of his action a ministerial edict which had been addressed to him, requested in his letter of the 7th of September last, No. 12093, to the United States legation, to be supplied with translations of an American passport and of a certificate of naturalization belonging to a certain Beni Balamut, the orders in question being those issued by the Imperial and Royal ministry of the interior to the administrative authorities under its control defining the procedure to be adopted in cases in which doubt might occur as to the contents or the authenticity of North American passports or as to the identity of the owner of such documents.

In complete accordance with the suggestions on this subject contained in the esteemed note of the 26th of February last, No. F. O. 52, the administrative authorities—including, of course, those in Galicia—under the control of the Imperial and Royal ministry of the interior, have received instructions that such American passports as can not, for lack of knowledge of the English language, be duly examined by the office in question may, in case of need, be forwarded to the nearest American consular officer with an appropriate inquiry, but certainly not with a request that they be translated. On the other hand, however, in all cases in which a well-founded suspicion is present that an American passport is a forgery, or is being used by a person who is not identical with the person whose name it bears, these facts, with all available proof in support of them, are to be reported direct to the Imperial and Royal ministry for foreign affairs, in order that this latter may associate itself with the legation of the United States in the prosecution of a searching inquiry into the facts of the case.

It having thus been shown that the standing orders in question are in complete accordance with the wishes expressed by the minister, Mr. Addison C. Harris, the Imperial and Royal ministry for foreign affairs regards it as its duty to approach the honorable chargé d’affaires of the United States of America with the most respectful request that the general instructions (hitherto held back) to the consular officers of the United States of America established in the Monarchy, dealing with the above-mentioned modus procedendi, may now kindly be issued with as little delay as possible, to the end that new complications may not in future arise for lack of such instructions to the American consular offices concerned.

From what precedes it must be self-evident that, in addressing the above-mentioned request to the legation of the United States of America, the imperial and Royal sheriff (bezirkshauptmann) of Rapczyce was simply acting under a certainly most regrettable misapprehension, as will be represented with appropriate comment to that officer.

Finally, with reference to the cases of Danislowicz, Kreswirth, Turck, and Schesny, to which the attention of this ministry was directed by the esteemed note of the 10th [Page 61] of September last, No. F. 0.101, in which cases the return of the American papers of legitimation taken from the persons named by the Austrian and Hungarian authorities has been unduly long delayed, the Imperial and Royal ministry for foreign affairs lost no time, immediately on receipt of the above esteemed communication, in informing the ministries in Vienna and Budapest as to the circumstances described, with the request that the necessary steps might be taken without delay, unless some insuperable obstacle should really stand in the way to hinder this from being done, to secure the immediate return of the papers in question to the persons named.

According to a preliminary communication from the Imperial and Royal ministry of the interior, it also on its part immediately addressed a telegram to the Imperial and Royal governor (statthalter) at Lemberg, directing his attention to the complaints made by Alexander Danislowicz and Ignatz Kreswirth, and hopes very shortly to be in a position, as the result of this proceeding, to make a further and detailed communication on this subject.

The Imperial and Royal ministry for foreign affairs has also, in the interim, received a preliminary telegraphic communication from the Royal Hungarian ministry of the interior, containing the information that his American certificate of naturalization has already been returned to Michael Turck, and that, in the matter of Rudolf Schesny, the deputy sheriff (vicegespan) of the comitat of Saros has been requested to send in bis report upon the case with all possible dispatch.

While doing itself the honor most respectfully to acquaint the honorable chargé d’affaires of the United States of America of the foregoing, the Imperial and Royal ministry for foreign affairs reserves for a future occasion the further separate consideration of the special cases in question.

The undersigned avails himself at the same time of this opportunity to renew to the honorable chargé d’affaires, etc.


For the minister:
Lützow.
  1. Printed, ante, page 53.
  2. The note referred to follows the above note.