Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

Report by counsel to the Vienna embassy on Austrian laws.

The qualification of an Austrian subject can be attained:

1. By way of birth. The citizenship in the Austrian States is inherent in the children of Austrian subjects from their birth. (Sec. 28 of the Austrian Civil Code.)

2. A female foreigner becomes an Austrian in marying an Austrian subject. (Decree of the Imperial Chancery, 23d February, 1833, No. 2,596.)

3. By an expressed investing a foreigner with the rights of an Austrian subject. Sec. 30 of the Civil Code.)

4. By accepting a situation in the public service. (Sec. 29 of the Civil Code.)

5. By an uninterrupted residence of 10 years a foreigner can obtain the quality of an Austrian subject, provided that he has during this time not suffered any punishment for crime, and that his behavior was always respectable. Only on this presumption such a foreigner is to be admitted to take the oath of an Austrian subject. (Sec. 29 of the Civil Code and Aulic Decree of 1st of March, 1833.)

6. In conformity with section 21 of the Patent, 24th March, 1832, an Austrian subject who has, without legal authorization, emigrated, and consequently lost his rights as an Austrian subject, can be re-established by the grace of His Imperial Majesty.

The rights arising from the quality as an Austrian subject cease:

1. In consequence of emigration, which can take place with or without the authorization of the competent authorities. (Patent, 24th March, 1832, No. 2,557.)

2. For females, on then: marrying a foreigner. (Sec. 19 of the Patent, 24th March, 1832, No. 2,557.)

Particular remarks.—It is nearly impossible to give a distinct and coherent summary of all the laws concerning the mode of acquiring the quality of an Austrian subject, and the mode of losing it. The first and systematic dispositions regarding this matter are contained in the Austrian civil code. They have, however, experienced in the course of time so many alterations that the code can no longer be considered as the principal scource regulating such matters. The above cited laws, copies of which accompany this note, contain most of the now existing rules. There are, besides, some which exercise a certain influence on the subject, even if they have not been issued with the intention to give a new rule of attaining the quality of an Austrian subject. So, for instance, the now existing law in regard to trade does no longer maintain the distinction between business requiring a regular domicile in a certain place and other undertakings. Therefore the establishing of a business requiring a regular domicile can no longer be considered as a mode of acquiring the quality of an Austrian subject. This is the more accurate, as foreigners, according to this law, are fully entitled to carry on such business in this country without undergoing any alteration of their quality as foreigners. Further, the law concerning the communes establishes the principle that any Austrian subject must be a member of a community in the country. And as no commune (gemeinde) can be compelled to receive a new member against their will, it is a natural consequence that a foreigner who is about to apply for the Austrian citizenship must secure himself the reception in some Austrian community, and that he cannot obtain the citizenship itself without having secured an eventual reception in such an Austrian community.

D. J. WINIWARTER.

Vienna, February 8, 1868.

[Inclosure 1.]

Code civil sec. 28.

On acquiert la jouissance complète des droits civils par le droit de bourgeoisie,. Le droit de bourgeoisie dans nos états héréditaires appartient, par droit de naissance, aux enfants de tout bourgeois autrichien.

[Inclosure 2.—Translation.]

Court Chancery Decree of 23d February, 1833, to all the Chief National Authorities, in pursuance of the Imperial Resolution of 26th January, 1833.

His Imperial Royal Majesty has been pleased to decide, in addition to the methods of acquiring Austrian citizenship in the General Code of Civil Law, and in accordance with section 32 thereof, and with section 19 of the Emigration Patent of 24th March, 1832, (I. G. S., No. 2,557,) that Austrian citizenship may also be acquired by a foreign woman through her marriage with an Austrian citizen.

[Inelosure 3.]

Code civil, sec. 29.

Les étrangers acquièrent le droit de bourgeoisie autrichienne en entrant dans un service public, en entreprenant une industrie dont l’exereiee exige un domicile habituel dans le pays; par un séjour non interrompu de dix années dans nos états, sous la condition toutefois que, dans ce laps de temps, l’étranger ne se sera attiré aucune peine à raison d’un délit.

[Inclosure 4.]

Code civil, sec. 30.

On pent aussi, sans l’exercice d’une industrie ou d’un metier, et avant l’écoulement de dix années, se pourvoir aupres des autorités politiques pour obtenir le droit de bourgeoisie, et celles-ci pourront l’accorder suivant l’état de la fortune, la capacité in-dustrielle, et la moralité du demandeur.

[Inclosure 5.]

Abstract of an ordinance by Francis I, Emperor of Austria, respecting the emigration or expatriation and unauthorized absence of his subjects from their country, applicable to his German States, to Lombardy and Venice, Dalmatia, Galacia, and Lodomeria.

I. Emigration or Expatriation.—Any Austrian subject who leaves his own country for a foreign state without the intention of returning is to be considered as an emigrant.

II. Lawful Emigration.—Those who wish to emigrate must apply to the proper -authority to be released from their Austrian citizenship. They must prove that they are self-dependent, and in the free exercise of their rights; they must state what members of their family are to emigrate with them; prove that they have all fulfilled their military liabilities; and show that no hinderances exist in regard to public duties. Should the application be rejected, recourse may be had to the Privy Council.

III. Unauthorized Expatriation.—Those who go to a foreign country without leave, with the expressed or apparent intention to return no more, are to be considered as unauthorized emigrants. Such intention is shown by the acceptance of foreign citizenship, or a foreign, civil, or military office without special permission, by joining a foreign religious institution or other association out of the empire, requiring personal attendance; by staying abroad for five years without having property or business there requiring such absence, and if the family and property of the emigrant be withdrawn from the country; by staying abroad for ten years without the previous conditions; by non-obedience to a summons of recall to the Austrian states, issued by the authorities. The five and ten years’ periods are not applicable to Austrian subjects residing in states with which Austria has treaties of free emigration.

IV. The Effects of Emigration.—Those who emigrate with permission lose their character as Austrian subjects and are treated as foreigners. Those who emigrate without permission lose their rights of citizenship, and are liable to all the legal consequences of that loss; they lose the rank and advantages which they held in Austria, and are struck off-the registers; they can neither acquire nor transfer property where this law-applies; any previous testamentary dispositions with regard to such property become void; their inheritances go to the next heir after them. Their property is sequestered without prejudice to the claims thereon. Their children or descendants resident in the State are suitably maintained out of the sequestrated property. The net overplus goes to increase the property, the whole of which reverts to the heirs at the death of the expatriated owners. In special cases the sovereign can allow the children to enjoy the sequestrated property.

V. The Children of Unauthorized Emigrants.—Those who are born before sentence has been passed against the father do not lose their Austrian citizenship or their position during their minority, nor for 10 years after coming of age if the father be still living; nor for one year after his death, if within the 10 years; nor for three years after coming of age if the father die before they do so; and they enter upon their full rights if they return to the Austrian states within those periods. This favor is also applicable to children sent to reside abroad by an Austrian subject living himself in the country. Such children are, however, to be looked upon as foreigners if they have acquired citizenship abroad, or if they do not claim the reserved rights within the prescribed periods.

VI. Female Subjects married to Foreigners.—They lose the Austrian citizenship on such marriage, and if they become widows, can only regain it in the same way as any female foreigner.

VII. Rehabitation.—Citizenship can only be reconferred on unauthorized emigrants by permission of the sovereign; but those who have emigrated with permission may regain it in the manner prescribed in the General Code of Civil Law. Such regained citizenship is only available in regard to subsequently acquired rights.

VIII. Unauthorized Absence.—Subjects who go out of the state without passports or permission, or who stay away longer than the time fixed, are considered to be absent without authority; and if they cannot justify themselves they are liable for that absence alone to a penalty of from five to fifty florins, or imprisonment for from three to fourteen days, and to double the amount)f fine and one or more fast-days during the imprisonments, if the absence continue for longer than three months.

IX. Proceedings against Unauthorized Emigrants.—The absentees are to be summoned to appear within a certain time by edicts duly promulgated in newspapers and in the neighborhoods to which they belong. If they do not appear within the appointed period proceedings are taken against them in the civil courts by order of the government, and their property is sequestrated.

X. Proceedings against Unauthorized Absentees.—The absentee is first to be summoned by an edict to answer for himself within three or six months, according to the circumstances; he may justify himself during those periods; if he does not, judgment is passed against him by the competent court. Appeals are allowed to the superior authority.

XI. Provisions applicable to the proceedings in both cases.—If the absentee or emigrant be accused of any criminal act, proceedings are taken in the criminal court, and, the civil proceedings are stayed meanwhile. The judgment in the criminal proceedings is sent to the civil court for its sentence on the absence or expatriation. The sequestration is operative during the criminal proceedings.

XII. Transitory provisions.—Expatriation proceedings pending at the promulgation of this ordinance are to be adjudged according to it; but if former laws awarded a milder punishment, that only is to be inflicted. Sentences passed before the promulgation of this ordinance remain in full force.

The enactments of the general civil code, as well as all military conscription and police laws applicable to absentees or emigrants retain their full force and validity; all other laws and regulations on the subject are hereby annulled.

Vienna, 24th March, 1832.

[Inclosure 6.—Translation.]

Court Chancery Decree of 1st March, 1833, to all the Chief Authorities of the Country.

His Imperial Royal Majesty has been pleased to command by supreme resolution of the eighth of February 1833, that from henceforth Austrian citizenship shall not be acquired by a foreigner through an uninterrupted residence of full 10 years in the countries for which the general code of civil law is binding, until he shall have given the requisite proof thereof to the chief national authority of his last dwelling-place; shall have taken the citizen’s oath, by order of that authority, either to itself or at the proper district court, and shall have received a certificate of his having done so,

The foreigner shall not, however, be allowed to take that oath until the aforesaid chief national authority has been fully convinced that throughout the said time, not only has he not rendered himself liable to punishment for any crime, but that his conduct has always been peaceful, obedient to the laws and ordinances of the constituted authorities, and well-mannered, and that by his demeanor and the known tenor of his thoughts, he has never given any real ground for suspicion or complaint.

On the other hand, those foreigners who have, on the day of the publication of this supreme resolution, already completed the 10 years’ uninterrupted abode in the said countries, are to be allowed to relinquish the Austrian citizenship thereby acquired, by giving proof that they had no intention of becoming Austrian citizens; this proof must, however, be produced absolutely at the latest within six months from the publication of this supreme resolution, as after that time it will no longer be allowed.

I.—Naturalization act of 1844.

[Omitted: the provisions of the act of 1870(printed ante) having been substituted for it.]

K.—British diplomatic and consular circulars. (Omitted.)

L.—Extracts from Mr. Vernon Harcourt’s letters. (Omitted.)

M.—Report of the Committee on Foreign Affairs concerning the rights of American citizens in foreign states, in the House of Representatives, January 27, 1868.

[N. B.—Reference for this report is made to the documents printed by order of Congress.]

N.—Naturalization statutes.

N. B.—The act of 1870, ante, is deemed to be ample to give a knowledge of the present legislation of Great Britain. It has not been thought necessary to reprint this title.