Mr. Tripp to Mr.
Gresham.
[Extract.]
United
States Legation,
Vienna, August 13, 1894.
(Received August 28.)
No. 92.]Sir: Permit me to present for your
consideration the case of David Hofmann, a former citizen of
Austria-Hungary, now a naturalized citizen of the United States,
expelled from this country by order of the district authorities at
Prague.
You will find herewith the correspondence between Mr. Karel, the U. S.
consul at Prague, and the district commander, as well as the decision
affirming the decree of expulsion appeal to the government of the
province, together with the correspondence between this legation and Mr.
Karel.
It appears from the letters herewith inclosed that Mr. Hofmann was born
in Bohemia, on the 21st day of March, 1864, and in July, 1883, at
[Page 31]
the age of of 19 years, he
emigrated to the United States, where he became a naturalized citizen,
and whence, after a residence there of eleven years, he returned to his
native country, on or about May 15, 1894. Mr. Hofmann brought with him a
certificate of his American citizenship and a passport from the State
Department at Washington, which were exhibited to the proper authorities
on his arrival in Bohemia. It does not appear from the correspondence
what was the object of Mr. Hofmann in returning to Austria-Hungary,
further than that Mr. Karel incidentally refers to it as being for the
purpose of visiting his parents. Nor does the correspondence anywhere
disclose how long a sojourn he intended to make in the country. About
two months after his return, to wit, on the 8th day of July, 1894, Mr.
Hofmann was served with a notice from the district authorities to leave
the country within eight days, “for reasons of public welfare,” and for
the further reason, given by the district captain in his note of July 11
to the U. S. consul at Prague, “because it appears contrary to public
peace and order that persons who have evaded the military law in this
manner sojourn in this country.”
From the decision of the district authorities Mr. Hofmann appealed to the
governor of the province, which appeal was subsequently dismissed as not
having been taken within the time allowed. An examination of the
decision on appeal reveals the fact, however, that the governor did
examine the case upon its merits, for after announcing the fact in his
decision dismissing the appeal that it was not taken within the three
days after sentence had been made known, he further adds, “Aside from
this, the reasons for expulsion are Justifiable,” and we may therefore
treat the decision on appeal as affirming the sentence for expulsion on
the ground that it is contrary to public peace and order that persons
who have evaded the military law sojourn in the country.
Mr. Hofmann has, I presume, left the country in obedience to the sentence
of expulsion, as he would undoubtedly have been forcibly ejected had he
declined so to do.
I have written to Mr. Karel, in answer to his request for the presentment
of this matter to the foreign office, that I have submitted the case to
the Department of State at Washington, and shall be governed by
instructions received.
It will be observed that the authorities of Bohemia are careful to base
their decree of expulsion, not upon the ground of the acquired
citizenship Of Mr. Hofmann in America, nor do they in anyway deny the
right of the former Austrian citizen, owing military duty to his native
country, to become a naturalized citizen of the United States, and
thereby evade such duty. By their action, on the other hand, they admit
all we claim under the treaty in behalf of the naturalized citizen, to
wit, the full right of expatriation and an exemption from punishment for
nonfulfillment of military duty, unless he be at the time of emigration
enrolled as a recruit in the standing army, or in actual service, or on
leave of absence for a limited or unlimited time, or belonging to the
militia or reserve, he emigrated after call into service, or after
public proclamation requiring his appearance, or after war had broken
out. The action taken by the authorities in Bohemia is sustained by the
position taken by the foreign office, and is in accordance with the
action of the district authorities in several cases in the past, against
which former ministers, my predecessors, have mildly protested, but no
question of tangible international importance has been definitely
presented for your consideration.
[Page 32]
My own convictions are very strong in this matter, that every nation has
the right to bar its doors against obnoxious citizens of other nations
for reasons which to itself may seem sufficient, without cause of
complaint on the part of the nation whose citizen is thus debarred. We
have assumed the right in case of China and in particular classes of
cases in reference to the citizens of other countries. I am disposed to
think the reasons that Austria-Hungary gives for closing her doors to
former citizens who have openly evaded her military laws a good one. It
is an undeniable fact that hundreds of young Austro-Hungarian citizens
approaching the age of military service emigrate to America, and,
remaining there just long enough to acquire citizenship, return again to
their native country to permanently reside, resuming their former
citizenship and allegiance to the Government in everything but its
military laws. 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 or responsibilities. The example of these “Americans” before
the young men of the country, to say nothing of their teachings and
boastful assertions of immunity, is pernicious, and against public order
and ready obedience on the part of the citizens to the necessarily harsh
enforcement of the military laws of this Government. I have seen very
much of these “American” citizens during the past year. Many of them are
married and in business here; they have no intention of returning to
America, they own no property, and they pay no taxes in America, they
have not even the ties of family or friendship to bind them to their
adopted country; their citizenship is a fraud, a fraud against their
adopted as well as against their native country. In time of peace they
burden us with their claims of loyalty; in time of war they deny their
assumed allegiance, and claim, by abandonment, a restoration of their
civil rights to which they are entitled by birth.
* * * * * * *
I have digressed somewhat, and at considerable length have attempted to
give you a partial view of the position of the legation here in
reference to these returning American citizens, and as the question is
an important one, and one that must likewise trouble our ministers and
ambassadors at other courts, I have thought proper to set forth the
condition of affairs existing here somewhat at length, and I shall with
pleasure modify any action that may have been taken, if deemed
necessary, to bring myself in accord with the general administration of
the State Department in reference to all foreign countries in which
similar cases may arise.
I may further add, in reference to the treatment of naturalized
Austro-Hungarian citizens returning to their native country, I have
several times had occasion to ask permission for such citizens, even
some who were liable to arrest and imprisonment under the treaty, to
return for a brief visit to their parents and friends, and in every
instance it has been cheerfully granted. From my observation here and my
intercourse with the ministry of foreign affairs of Austria-Hungary, I
am free to say that this Government has not only been very courteous,
but has exhibited on every occasion a desire to fulfill with exactness
the conditions of the treaties existing between the two governments in
reference to expatriation and naturalization of citizens of either
nation.
It is probable that something may have arisen in reference to David
Hofmann during his two months’ visit in Bohemia that made his longer
[Page 33]
sojourn undesirable, for the
remarks and conduct of all foreign citizens are under complete
surveillance here. But in the case as it appears upon the record, the
question is squarely presented, is it a sufficient reason for expelling
a naturalized American citizen, that he has evaded the military laws of
the country? If you say it is, and that this country has the right to
declare what class of citizens are obnoxious and shall be prohibited
from crossing its boundaries, that will end the matter. If you say it is
not, I trust you will explicitly give me your views in referenced the
course to be pursued in such cases; and in this connection be so kind as
to lay down the rule of action that ought to govern in the renewal of
passports of American naturalized citizens remaining indefinitely
abroad.
I shall await your answer with much interest. In the meantime,
Permit me, etc.,
[Inclosure 1 in No. 92.]
Mr. Karel to
Mr. Tripp.
U.
S. Consulate at Prague,
July 18, 1894.
Sir: A citizen of the United States by the
name of David Hofmann, who is a young man of about 25 years of age,
came back to Bohemia to visit his father. After he had been home a
few days the district authorities asked for his passport and its
examination, and found it correct. A few days thereafter an official
order (A) to quit the Austro-Hungarian Empire within eight days was
served on him on the 8th day of July. On the 9th he appeared at my
office and stated his case. In reading the order over, I found that
it was issued under paragraph 2, which relates to vagrancy, and
could not be applied to Mr. Hofmann, because he has sufficient means
to support himself, lived with his friends, and did not molest any
one. I therefore wrote on the same day to the district authorities
(B), requesting an explanation. Answer (C) reached me on the 14th.
In the answer they base their action under paragraph 45, relating to
resistance (defense) law, which according to our treaty can not be
applied to Mr. Hofmann.
He left Austria at the age of eighteen, before he was subject to
military duty. If paragraph 45 would legally apply to him, he would
be a deserter; then why do they not deal with him according to the
law? On the 14th I wrote again to the district authorities (D), but
to this date have received no answer. I advised Mr. Hofmann to
appeal from the order of the district captain to the governor, and
he notified me that he did so through Dr. Dieschner, an attorney at
Pilsen. He also inquired whether he should leave Austria at the
expiration of the eight days, and I told him to remain here and wait
the result of his appeal.
Thinking that I would be able to adjust this matter without referring
it to you, but failing, and it being a question of importance to
naturalized American citizens, I therefore transmit the same for
your consideration and action.
I am, etc.,
[Inclosure A in inclosure 1 in No.
92.]
District Captain’s Office, in
Mies,
July 8,
1894.
The contents of these acts having been shown to David Hofmann, he
produced two papers made out in English purporting to be proofs of
his American citizenship. Thereupon he was told that for reasons of
public welfare and according to paragraph 2 of the law of the 27th
of July, 1871, he was to be expelled forever from Austria, and that
he must leave within eight days or be escorted over the frontier
under a guard.
salv. rex.
I take cognizance of the foregoing and request a copy of this
sentence, wishing to appeal against it.
Certified to be a true copy.
Signature of the clerk of the court.
[Page 34]
[Inclosure B in inclosure 1, No.
92.]
United States Consulate,
Prague, July 9,
1894.
To the District Captain at Mies:
Sir: David Hofmann, a United States
citizen, appeared in my office to-day and showed me a copy of the
note of July 8, received by him from the district captain at Mies,
in which lie is ordered to leave the country within eight days. As
this note does not give the reason why this measure was adopted, I
beg leave to request to be informed why this order to leave the
country was issued against this American citizen. I also request to
be put in possession of the details of the case in order to form a
clear conception of the facts to enable me to take the necessary
further steps.
Requesting an early reply,
I am, etc.,
[Inclosure C in inclosure 1 in No.
92.]
To the Consulate of the United
States of America,
Prague:
In reply to the esteemed note of the 9th of July, I beg to inform you
that the former Austrian subject, David Hofmann, at present a
naturalized citizen of the United States, is liable to military
duty.
He went to America before he had reached the age which rendered him
liable to military duty, and recently returned to this country. As
the provisions of paragraph 45 will not be applied to him on account
of his having acquired United States citizenship, it has been
decreed that the above named be expelled by the police, because it
appears contrary to public peace and order that persons who have
evaded the military laws in this manner be allowed to sojourn in
this country.
The I. and R. District Captain.
Mies, July 11,
1894.
[Inclosure D in inclosure 1 in No.
92.]
United States Consulate,
Prague, July 14,
1894.
To the District Captain in
Mies:
Sir: I am in receipt of your answer stating
the reason why D. Hofmann, a United States citizen, at present
staying in Wenussen, near Tschkau, in Bohemia, was ordered to leave
the country. It is said that this course was adopted in accordance
with paragraph 45. I affirm, however, that this paragraph can not be
applied to Hofmann’s case, for then he would be a deserter. I beg to
call your attention to Article II of the treaty between the United
States and Austria-Hungary of September 20, 1870. Hofmann did not
leave Austria to avoid rendering military duty, but to find a new
home. He arrived in the United States, lived there, and acquired
citizenship. After some years he returned to his native country to
visit his parents. At the time he left Austria he was not liable to
military duty, nor did he leave as a criminal; therefore paragraph
45 can not be applied to him.
Accordingly I request the honorable captain of the district that the
order of expulsion issued against David Hofmann be withdrawn, and
that this decision be immediately communicated to me.
Should my appeal not be granted, I will be compelled to refer the
matter to the legation of the United States in Vienna for further
action.
Trusting to be favored with an early answer,
I am, etc.,
[Inclosure 2 in No. 92.]
Mr. Townsend to
Mr. Karel.
United States Legation,
Vienna, July 19,
1894.
Sir: I beg to acknowledge the receipt of
your favor of the 18th instant, with inclosures A, B, C, and D,
relating to the case of Mr. Hofmann, a naturalized American citizen,
ordered to leave the country of his birth, said order being based on
paragraph 2 of the law of July 27, 1871.
Sufficient time has hardly elapsed since July 14, the date of your
statement of the case to the local authorities, for them to have
investigated it and received instructions
[Page 35]
from headquarters. I shall, therefore, wait
until I hear from you before presenting the case to the foreign
office, especially as it will be necessary for me to have the
following additional data, viz, the date and place of Hofmann’s
birth, date of his emigration, date of his return, and his domicile
prior to his emigration. I may add for your information and for the
consideration of Mr. Hofmann, that it is extremely doubtful if the
Government of Austria-Hungary will withdraw their order of
expulsion, as they have carried into effect exactly similar orders
in like cases in the past. I quote as follows from a letter received
by this legation from the foreign office in a corresponding
case:
“The expulsion took place in conformity with article 2 of the law of
July 27, 1871, because his stay in Austria was considered
inconsistent with public order.
“Not coining under the provisions of 1, 2, and 3 of Article II of the
treaty of September 20, 1870, he was not on his return to Austria
held to perform military service. The treaty has therefore not been
violated, inasmuch as his United States citizenship was
recognized.
“The above-mentioned treaty, however, does not deprive the imperial
and royal government of the right to issue a decree of expulsion
against any foreigner whose stay in the country may be considered as
being inconsistent with public peace. In the present case the United
States citizenship was obtained with the evident intention, or at
least with the full knowledge of avoiding by so doing, the
performance of the duties of an Austrian subject, under the
protection of the treaty of September 20, 1870,
“The naturalization took place, therefore, when regarded from an
Austrian legal point of view, doubtless in fraudem
legis.
“The provisions of the Austrian military laws of October 2, 1882,
were not framed until after the treaty of September 20, 1870, had
been concluded. The result is, that the U. S. Government does not
always judge the proceedings of the authorities here against former
Austro-Hungarian subjects from the same point of view, however
justified the measures may be, according to our laws.”
You will observe from the foregoing that the Austro-Hungarian
Government reserves the right to exercise expulsion upon any
foreigner whose stay in the country may be considered as being
inconsistent with public order. To say that the stay of Mr. Hofmann
is inconsistent with public order is doubtless stretching the point
to its utmost limits, and upon this point must we base our
claim.
Awaiting further details,
I am, etc.,
[Inclosure 3 in No. 92.]
Mr. Karel to
Mr. Townsend.
United States Consulate,
Prague, July 24,
1894.
Sir: In compliance with your request of the
19th instant I wish to give you the following further information in
the case of David Hofmann:
He was born March 21, 1864, at Dobraken, in Bohemia; emigrated to the
United States in July, 1883; returned May 15, 1894. His domicile
prior to his emigration was Wenussen, in Bohemia.
His appeal is pending, and I have received no further official
information.
I am, etc.,
[Inclosure 4 in No. 92.]
Mr. Karel to
Mr. Townsend.
United States Consulate,
Prague, August 2,
1894.
Sir: The governor of Bohemia has dismissed
the appeal of David Hofmann on the ground that he did not appeal
within the time prescribed by law, namely, within three days. I am
sorry; I would like to have heard the governor’s ruling on this
question.
A copy of the decision is herewith inclosed.
I have written to Mr. Hofmann that under these circumstances he will
have to leave.
Will you bring it before the imperial and royal minister of foreign
affairs?
I am, etc.,
[Page 36]
[Inclosure in inclosure 4 in No.
92.]
decision.
Provincial Government of Bohemia,
Prague, July 31, 1894.
To the District Captain at
Mies:
The imperial and royal provincial government finds that the appeal of
David Hofmann, domiciled at Ullitz, who acquired citizenship in the
United States, made by him against decision of the court dated July
8, 1894, No. 12756, decreeing his expulsion from the kingdoms and
countries represented in the Reichsrath, was presented too late, and
dismissed because the appeal was not made within the lawful limit of
three days after the sentence had been made known, and not until
July 16, 1894.
Aside from this, the reasons for expulsion are justified.
According to paragraph 7 of the law of July 27, 1871, No. 88, no
further appeal can be made.
The district captain will take the necessary steps to carry out the
order for expulsion.
The supplements of the report of July 18, 1894, No. 13971, are
herewith returned with the information that a copy of this decision
has been transmitted to the U. S. consulate in Prague.
Prague, July
31.
Transmitted to the U. S. consulate at Prague with reference to the
note addressed to the district captain at Mies and the appeal made
by David Hofmann, presented in the esteemed note of July 14,
1894.
For the Governor of the
Province.
