File No. 4062/11–12.

Ambassador Francis to the Secretary of State.

No. 225.]

Sir: I have the honor to acknowledge receipt of Mr. Bacon’s No. 98, dated April 13, relative to the expulsion from Austria of Mr. Selig Fink, a naturalized citizen of the United States, of Austrian origin.

Following instructions, I have to-day addressed Baron Aehrenthal at length, not only upon this particular case, but on the attitude of the American Government toward the general question involved of the return of former Austrian or Hungarian subjects to the State of their origin after having become naturalized American citizens.

On account of the constantly increasing number of cases arising, owing to the large annual emigration to the United States from the various countries of this Empire, it is believed a full interchange of [Page 23] views upon the subject between this embassy and the foreign office will lead to a better understanding between the Governments of the United States and Austria-Hungary as to the recognized rights of such former residents of Austria and Hungary, under the naturalization treaty of September 20, 1870.

I inclose a copy of my note to the minister of foreign affairs which, I trust, will meet with your approval.

I am, etc.,

Charles S. Francis.

Ambassador Francis to the Minister for Foreign Affairs.

No. 84.]

Your Excellency: Recurring to the case of Mr. Selig Fink, an American citizen, who was expelled from Austria by an order issued at Grybow July 4, 1906, and signed by Stach, imperial and royal bezirkshauptmann, I have the honor to call your excellency’s attention to the following facts bearing on the incident in question:

Mr. Fink was born in Austria in 1879, emigrated to the United States in 1893 and was subsequently admitted to American citizenship in accordance with the naturalization laws of the United States. In 1905 he returned to his native town in Galicia for the purpose of temporarily assisting his aged father in the management of property interests in Grybow. Arriving in the town of his nativity, Mr. Fink reported to the prefect and presented his American passport and certificate of naturalization, but was ordered to leave the country on the ground that he had not fulfilled his military duty prior to his emigration, had left Austria without permission, and had become an American citizen. Assurances are given me that in this case no complaint or suspicion of any offense was shown before any judicial tribunal, no testimony was taken, and no opportunity afforded Mr. Fink to provide sureties for his proper legal conduct while temporarily sojourning within the borders of Austria. I am reliably informed that upon the presentation of his passport the prefect demanded from Mr. Fink the equivalent in Austrian money of $20 for the purpose of having the same translated. To this Mr. Fink demurred, saying that he would consult the American consul-general in Vienna on the subject. Subsequently, the prefect withdrew his demand, but shortly afterwards substituted official prosecution in the form of an order of expulsion.

It is Mr. Fink’s desire to return to Grybow, Galicia, for a limited period in order to complete the details of the business which originally called him to the country of his birth, and on his behalf I respectfully request the friendly offices of your excellency to obtain a revocation of the order of expulsion in his case; or, at least, to have it so modified that Mr. Fink may have an opportunity to attend to the legitimate business that imperatively calls him to Austria.

I beg to call your excellency’s attention to the text of the official order of expulsion in Mr. Fink’s case, which declares:

“His presence at Grybow and in the Kingdoms and Provinces represented in the Austrian Parliament is undesirable with a view to public safety and order, for the reason that he did not perform his military duty as an Austrian subject, and he acquired American citizenship, in accordance with article 2 of the treaty of September 20, 1870, Law Bulletin No. 74, without having applied for release from Austrian citizenship, and because he has returned to Grybow with the apparent intention of establishing his permanent residence there.”

Permit me, your excellency, to controvert the legality of the reason given in the order of the expulsion “that he (Mr. Fink) did not perform his military duty as an Austrian subject, and he acquired American citizenship * * * without having applied for release from Austrian citizenship,” by quoting article 2 of the naturalization convention of September 20, 1870, between the United States of America and the Imperial and Royal Kingdom of Austria-Hungary:

“A naturalized citizen of the one party on return to the territory of the other party remains liable to trial and punishment for an action punishable by [Page 24] the laws of his original country committed before his emigration, saving always the limitation established by the laws of his original country and any other remission of liability to punishment.

“In particular a former citizen of the Austro-Hungarian monarchy, who under the first article is held to be an American citizen is liable to trial and punishment according to the laws of Austria-Hungary, for nonfulfillment of military duty.

  • “1. If he has emigrated after having been drafted at the time of the conscription and thus having been enrolled as a recruit for service in the standing army.
  • “2. If he has emigrated whilst he stood in service under the flag or had a leave of absence only for a limited time.
  • “3. If, having a leave of absence for an unlimited time, or belonging to the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out. On the other hand a former citizen of the Austro-Hungarian monarchy naturalized in the United States, who, by or after his emigration has transgressed the legal provisions on military duty by any acts or omissions other than those above enumerated in the clauses numbered one, two, or three, can on his return to his original country neither be held subsequently to military service, nor remain liable to trial and punishment for the nonfulfillment of his military duty.”

At the time of Mr. Fink’s emigration he had not arrived at the age when, by so doing, he transgressed the laws of Austria governing liability for military service to the State, and, therefore, on his return 12 years later to the country of his origin he could not, under treaty rights assured him, “remain liable to trial and punishment for the nonfulfillment of his military duty.” Nor does it appear how the prefect of Grybow, who issued the official order, arrived at the erroneous conclusion that it was Mr. Fink’s “apparent intention of establishing his residence there,” for the latter had never been summoned to give testimony in the unwarrantable proceedings against him.

In order that there may be a clearer, mutual understanding between our respective Governments regarding cases coming under the provisions of the existing treaty named, I embrace this opportunity to present the subject, in extenso, to your excellency for your consideration in the hope that there may be reached a more definite, reciprocal comprehension of the common rights assured citizens of the United States and Austria-Hungary under the naturalization treaty of 1870. If an Austrian subject emigrates to the United States before any liability accrues for the performance of military service, becomes naturalized there and returns to the country of his birth, not, however, with the purpose of establishing his domicile therein, his case, not coming within the exceptions of the naturalization treaty of 1870, is covered by it and it is believed 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 become a menace to the Government.

In the matter of these naturalization cases which so frequently arise, it is understood that the complaint of the Austrian Government is that their subjects emigrate to America only a short time before they reach the age of military service, acquire American citizenship, and then return to their native country where often they intend permanently to reside. It is realized that the effect of this may no doubt in some instances become serious upon the community in which they reside, by creating discontent and dissatisfaction in the minds of their townspeople who can not invoke the protection of the treaty as an immunity. As one American minister has said: “Many of these returned pseudo-Americans are loud in their defiance of the military power and openly and shamelessly boasts of their smartness in being able to enjoy all the privileges of a government without being obliged to share its burdens or 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 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 in some instances to treat in the same manner [Page 25] 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 citizens are liable to expulsion from Austria simply because they emigrated 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 the Government of the United States has so often earnestly protested. It is a 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 privileges of full American citizenship; on the contrary, it practically denies to them entrance within its territories.

The American Government’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 naturalized citizens of the United States return to Austria-Hungary for the purposes of bona fide temporary sojourn and conduct themselves as quiet and inoffensive individuals, the American Government should and will protect them as far as possible during such visit. In past cases the Austrian Government has acceded to protests in cases of this character. In other cases that have been the subject of correspondence between the Governments, 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 American Government 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 Government of the United States 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 this country on a similar mission.

In connection with the return of naturalized American citizens to Austria-Hungary, their obligations to their former State, and the conditions under which they may be permitted to remain in the country of their origin, I respectfully advert to the case of Gustav Wolf Louis Fischer, which several years ago was the subject of correspondence between the Governments of the United States and Austria-Hungary, as recorded in Moore’s International Law Digest:

“Mr. Fischer was born in Saxony, July 14, 1868. On the death of his father his mother removed to Vienna, where he was naturalized as an Austrian subject, November 17, 1885. In March, 1888, he was notified to appear for military duty, but on examination was pronounced unfit for service. He then went to the United States, where, December 5, 1893, he was naturalized. March 2, 1895, he obtained a passport and returned to Vienna. Early in 1900 he was summoned before a district magistrate and ordered to be banished. From this order he appealed to the governor of Lower Austria. At this point the minister of the United States at Vienna interposed, and asked that the order of expulsion be revoked.

“The Austrian Government stated that Fischer, at the time of his emigration, was classified as a person ‘remanded,’ and was under an obligation to report for a later examination. It was admitted that his naturalization was valid under the treaty of September 20, 1870, but it was maintained that his expulsion was not to be considered as a punishment but as an administrative measure. It was, said the Austrian Government, a measure inspired by ‘consideration for public order,’ and is based on the belief that the latter suffers offense when a person, by assuming foreign citizenship, avoids performance of those duties to his country which are placed upon him as upon all his fellow citizens, and then, protected by this new citizenship from the punishment otherwise resultant from this avoidance of duty, returns and settles permanently in the midst of his former countrymen, who find themselves in a condition not so favorable as his. Such an act is not only provocative of discontent in all those who fulfill their obligations to the State, be their fulfillment voluntary or compulsory, but it acts also as a bad example, and, were such proceedings unchecked or of frequent occurrence, would work positive harm to the defensive power of the State. The offensive impression and the corruptive influence of the action under discussion lie in the extreme conditions [Page 26] under which Fischer, who was still pledged to duties to the State in this country, accomplished his naturalization in America, and also in his return here to settle in Austria. It is immaterial whether the intention to return, after avoiding military duty, was already formed in his mind, as it is in a majority of such cases, or whether the intention to return, perhaps originally nonexistent, was formed at a later date.”

Commenting upon this note, the Department of State observed that “the weakness of this position is that it does not rest upon any averment of offensive conduct on Mr. Fischer’s part which would justify the individual application in his case of the right of expulsion, but rather, appears to lay down a general principle whereby the expulsion of every American naturalized Austro-Hungarian, who was under admitted liability to serve at the time of emigration, would be a necessary proceeding under the general policy of the State. Such a sweeping doctrine would to a serious extent neutralize the provisions of our naturalization treaty with Austria-Hungary. That instrument, weighing all the circumstances under which persons of military age might emigrate without fulfillment of their obligations, discriminated between the classes securing immunity by naturalization and those not so securing it. It can not be expected that this Government will acquiesce in a comprehensive enlargement of the nonimmune class by the ex parte act of the other contracting party.”

It was also observed that, so far as the Austrian answer dealt with the merits of the case, it comprised two distinct propositions—Mr. Fischer’s action prior to his naturalization and his action since. The first, as has been stated, was covered by stipulations of the treaty, and the second, which imputed to him an intention to settle in Austria, brought his case within article 4 of the treaty, which seemed to import that a naturalized citizen might reside indefinitely in the country of his origin without incurring any disability and without being obliged to resume his original citizenship. The Department of State further said: “Mr. Fischer, it now appears, has asked that the order of expulsion be postponed until September, and his petition has been granted. This arrangement may be deemed to embrace a voluntary engagement on his part to quit Austro-Hungarian territory by a given date, and he will be expected to abide thereby, * * * the principles upon which this Government rests in contesting the general claim of the Austro-Hungarian Government * * * being in no way prejudiced by Mr. Fischer’s action. * * * You should make our views upon this point and upon the broader point of expulsion for individual cause clear to the minister of foreign affairs.”

The Government of Austria-Hungary having stated that the treaty of September 20, 1870, contained no provision granting to American citizens the right to remain, and particularly the right to remain indefinitely, in Austria, and that their right to remain was therefore subject to the laws of the country, according to which (particularly Clause V, par. 2, law of July 27, 1871) persons who are not Austrian subjects may “be expelled from the entire territory or from part thereof, if their stay, for reasons of danger to public order or security, is objectionable,” the United States observed that the question whether naturalized citizens of the United States of Austrian origin might be expelled from Austria, as well as the question when they might be expelled would seem to depend upon the particular circumstances of each case; that the United States maintained that the “pernicious character of the returning person should be affirmatively shown in justification of the extreme resort to expulsion, and that the right so claimed should not rest on a vague and general theory of inconvenient example which might be stretched to cover the cases of all Austro-Hungarians naturalized here, and returning to their original jurisdiction;” that the treaty undoubtedly gave the right of inoffensive return, and that this stipulation was not to be impaired by construction.

The Austrian foreign office had alleged as the ground of expulsion in the case under consideration that “the ostentatious manner in which he (John Richter) evaded his legal duty to do military service is causing public scandal and may very easily give others an impetus to similar demoralizing acts.” As Richter was only 14 years of age when he was brought to the United States and would not have been subject to military duty till he reached the age of 19, it might, said the Department of State, be questioned whether he left for the purpose of evading such duty.

In view of the fact, however, that Richter had been informed by the American authorities that he might return to the place from which he was expelled, and as he had made no further complaint, it was not deemed desirable to take up the case with the Austrian Government.

[Page 27]

Regarding the expatriation of American citizens and their protection abroad, I have the honor to acquaint your excellency with sections 1 and 2 of the act of March 2, 1907, which you will observe apply to those persons who have declared their intention to become citizens of the United States and proceed abroad, and to naturalized citizens returning to the countries of their origin, or visiting other foreign States:

“That the Secretary of State shall be authorized, in his discretion, to issue passports to persons not citizens of the United States as follows: Where any person has made a declaration of intention to become such a citizen as provided by law and has resided in the United States for three years a passport may be issued to him entitling him to the protection of the Government in any foreign country: Provided, That such passport shall not be valid for more than six months and shall not be renewed, and that such passport shall not entitle the holder to the protection of this Government in the country of which he was a citizen prior to making such declaration of intention.

Sec. 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign State in conformity with its laws, or when he has taken an oath of allegiance to any foreign State.

“When any naturalized citizen shall have resided for two years in the foreign State from which he came, or for five years in any other foreign State, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war.”

Returning to the case before mentioned of Mr. Fink, the apparent reasons for his expulsion from Austria were that he was making use of his American citizenship to avoid military service; that he failed while sojourning in Austria to perform military duty as an Austrian subject; that he emigrated to the United States without the permission of the Austrian authorities, and his presence was additionally undesirable with a view to public safety and order. The American Government can well understand how the last-mentioned reason might be sufficient for his expulsion if his conduct were a menace to public safety, although no specifications of such misconduct are enumerated in the issued order of expulsion, but the adequacy of the other reasons is disputed upon the grounds already set forth.

Awaiting your reply, I avail, etc.,

Charles S. Francis.