File No. 4062/7–9.

The Acting Secretary of State to Ambassador Francis.

No. 98.]

Sir: I have to acknowledge the receipt of your No. 181 of the 23d of February last, in further relation to the expulsion from Austria of Mr. Selig Fink, a naturalized citizen of the United States, of Austrian origin.

The reasons in support of the policy of expulsion as given by Mr. de Mérey and continued in the note of the Austrian foreign office “in a similar case “from which you quote, have long been known to this department and have from time to time been made the subject of earnest remonstrances which, in meritorious cases, have been successful. The department will again endeavor to make clear a distinction which it has several times heretofore drawn in considering this class of cases in order that the subject may again be presented to the Austrian Government for its consideration.

The attitude of the Austrian Government in these cases is understood to be somewhat as follows: If an Austrian subject emigrates to the United States before any liability accrues for the performance of military service, becomes naturalized here and returns to the country of his birth, his case not coming within the exceptions of our naturalization treaty, is covered by it and the Austrian Government will no longer claim him as its subject; but the treaty does not deprive that Government of the rights which are inherent in every nation to adopt such measures as it may see fit for its own protection and preservation, among these rights being the power to expel any foreigner whose presence may be undesirable with regard to public order or safety and who may perhaps become a menance to the Government.

In the matter of these naturalization cases which so frequently arise, the complaint of the Austrian Government is that their subjects emigrate to America only a short time before they reach the age of miltary service, acquire American citizenship, and then return to their native country where very often they intend permanently to reside. Not only do they in this manner successfully evade the laws of the country of their birth, but this is often accompanied with as widespread a personal advertisement of the fact as the individual has at his command, and its effect may no doubt become serious upon the community in which he resides by creating discontent and dissatisfaction in the minds of those of his townspeople who can not invoke the protection of the treaty as an immunity. As one American minister has aptly said: “Many of these returned pseudo-Americans are loud in their defiance of the military power and openly and shamelessly boast of their smartness in being able to enjoy all the privileges of a government without being obliged to share its burdens of responsibilities.”

Up to this point in the argument there should be no serious difference between the two Governments in the treatment of these cases. The United States has no more interest to protect a naturalized citizen who has perpetrated a fraud upon it by using its naturalization [Page 21] laws for illegitimate purposes than the Austrian Government has in removing the same individual from its realms as an undesirable person. But the point of divergence begins here, for the Austrian Government by its legislation seeks to treat in the same manner all of its former subjects who have become naturalized in the United States and elsewhere, without making any distinction between those who return to Austria bona fide for the sake of a temporary, perhaps indispensable, visit, with the intention to return to their adopted country when their business is completed, and those who expect to remain there permanently, practically in fraud of both Governments. If all naturalized citizens are liable to expulsion from Austria simply because they came to America before the beginning of the period of military service and as an incident escaped the rigor of those laws, expulsion is their punishment for naturalization. It is this situation against which this Government has so often earnestly protested. It is penalty upon the innocent along with the guilty and in its application to the former has the effect of neutralizing to a serious extent the provisions of the naturalization treaty, for the Austrian Government does not recognize and grant to such of our citizens the privilege of full American citizenship—on the contrary it practically denies to them entrance within its territories.

The department’s conception of the just attitude to be taken in these naturalization cases is that each should be examined and determined upon its merits. If our naturalized citizens return to Austria-Hungary for purposes of bona fide temporary sojourn and conduct themselves as quiet and inoffensive individuals, this Government should and does protect them as far as possible during such visit. In past cases the Austrian Government has acceded to our protests in cases of this character. In other cases that have been brought to the department’s attention and have become the subject of correspondence with the Austrian Government, when it has been made to appear that the person involved has not acted in good faith or if he has been guilty of misconduct against or disrespect for the local laws, the department has withdrawn its protection. In other words, each individual case should be considered upon its own merits and should not be determined in advance against the prospective visitor. The department will confidently expect in the future, as it has in the past, that a naturalized American citizen of Austro-Hungarian origin who returns to Austria-Hungary, for temporary purposes of bona fide visit, business, or travel, will be treated in all respects as a native born American citizen in that country on a similar mission.

The passage which you quote in your dispatch setting forth the views of the Austrian foreign office upon this subject may be found nearly verbatim upon page 421 of volume 3 of Moore’s International Law Digest. You will find from an examination of this and the two pages following that the department fully answered the contention of the Austrian minister of foreign affairs, and that the case was settled to the apparent satisfaction of the person in whose behalf the department had interfered. An examination of pages 408 to 423 of this volume relating to correspondence between the two Governments concerning the naturalization treaty is commended to your attention.

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The department would be glad to have you recall the attitude of this department toward this question to the attention of the Austrian foreign office. In the particular instance now in hand, it appears from the letter of Mr. Parsons, inclosed with the department’s instruction No. 78 of January 31, 1907, that “Mr. Fink returned to Austria in order to help manage his father’s business” and while so engaged he was expelled. The nature of this management may well become important later, if Mr. Fink returns to Austria, in its possible bearing upon the permanency of his sojourn there, but it does not yet appear to have been called in question. The reasons for his expulsion as reported by you were that he was making use of his American citizenship to avoid military service, that he had failed, while living in Austria, to report for military examination, and had emigrated without permission of the authorities, and that “his presence was additionally undesirable on account of his conduct.” The department can well understand how the last mentioned reason might be sufficient for his expulsion, but the adequacy of the other reasons is disputed upon the grounds already set forth.

Mr. Fink appears now to be in the United States and desires to know what amount of protection will be extended to him in case of his return to Austria-Hungary. The department can not and does not guarantee protection in advance, nor does it encourage its naturalized citizens to return to the country of their origin. In this connection your attention is called to section 2 of the act of March 2, 1907, in reference to the expatriation of citizens and their protection abroad (copy inclosed), which provides that any naturalized citizen who has resided for two years in his native State shall be presumed to have ceased to be an American citizen. The amount of protection to which Mr. Fink would be entitled would depend entirely upon the circumstances of his return. As to this, of course, the department would not be authorized to speak before the emergency arises which might call for its interposition.

I am, etc.,

Robert Bacon.