Mr. Harris to Mr.
Hay.
United
States Legation,
Vienna, April 26,
1901.
No. 188.]Sir: On the 18th day of January, 1901, the
consul at Reichenberg informed me that John Richter, an Austrian-born
naturalized citizen of the United States, bearing a passport, had been
expelled from his native country, where he was sojourning.
I sent the consul a copy of the treaty of 1870, with directions to send
it to the bezirkshauptmann at Schluckenau, and to invite his attention
to the fact that Richter was not subject to arrest or expulsion. I also
addressed a note to the foreign office, a copy whereof is inclosed.
In a few days I had a letter from the consul stating that the
bezirkshauptmann had notified Richter that he might return. A letter
lately received from the consul is to the effect that Richter had made
no further complaint, and it is thought he has returned to America.
In the meantime a carefully prepared note came down from the foreign
office, a translation whereof is inclosed.
I would not report the case except for the fact that it will be noticed
the authorities for the first time put a new interpretation on the
treaty
[Page 9]
of 1870, to the effect that
there is no fixed time during which an American may sojourn in
Austria-Hungary, and therefore His Majesty’s Government may expel any
American at pleasure.
I do not entertain this view; but I have felt that it was better to lay
the matter before you for instructions. If you do not consent to this
construction of the treaty, I recommend that a clear and firm protest be
made to the foreign office, so that the case may not be taken as a
precedent.
I have, etc.,
[Inclosure 1.]
Mr. Harris to
Count Soluchowski.
United States Legation,
Vienna, January 23,
1901.
Your Excellency: I regret that I am
compelled to invite the attention of your excellency to the
following case, reported to this legation from the United States
consul at Reichenberg. He reports:
That John Richter was born in Bohemia in 1873. That at the age of 14½
years he was taken by his mother as an emigrant to the United
States, where he resided continuously until about the month of
October, 1900, when he returned to Schluckenau, the place of his
nativity. He was naturalized as a citizen of the United States on
October 12, 1896, in the circuit court of Cook County, State of
Illinois (Chicago). He holds a passport issued to him by Col. John
Hay, Secretary of State of the United States, dated September 26,
1900.
The consul reports that the bezirkshauptmann at Schluckenau refused
to recognize the treaty rights of Mr. Richter, although shown the
said passport, and ordered him to leave the bezirk within eight days
or he would be expelled by force. Thereupon the consul addressed a
letter to the bezirkshauptmann caking attention to the fact that Mr.
Richter was a citizen of the United States and had a right to
sojourn in this country, and also instructed Mr. Richter to explain
to the bezirkshauptmann the fact that he was lawfully at
Schluckenau, which he did. Whereupon the bezirkshauptmann declared
“the American representatives in this country could do nothing in
the case,” and required a gendarme to drive him out of the bezirk,
and said to Mr. Richter that he would be arrested if he returned.
Mr. Richter, to avoid further trouble, under protest obeyed the
commands of the bezirkshauptmann and is temporarily elsewhere.
I respectfully ask that your excellency will cause the facts to be
inquired into, and if found substantially as herein stated, to
direct the bezirkshauptmann to revoke his order of expulsion, and to
inform Mr. Richter, through the consul or otherwise, that his
conduct was in violation of the treaty of 1870, and that he has the
right to return to and sojourn in Schluckenau, and to be treated as
a citizen of the United States.
I avail myself, etc.,
[Inclosure
2.—Translation.]
The foreign office to
Mr. Harris.
The imperial and royal ministry for foreign affairs did not fail to
communicate, in due course of time, the contents of the esteemed
note of the 23d of January of this year, concerning the matter of
the expulsion of the naturalized American citizen John Richter, to
the imperial and royal ministry of the interior, in order that the
case might be treated accordingly.
The ministry of the interior at once caused the necessary
investigations to be made with reference thereto, which, when
examined, result in the following:
John Richter, who, while still an Austrian subject, emigrated in the
year 1887 without authorization (according to the provision of
paragraph 54 of the law of October 2, 1882, Imperial and Royal Law
Bulletin No. 153, then in force), thereby made himself guilty of a
transgression (according to paragraph 35 of the military law
[Page 10]
of the 11th of April, 1889,
Imperial and Royal Law Bulletin No. 41, and to paragraph 23 of the
Military Regulations, first part, respectively), by his failure to
report for conscription, and of the crime, eventually transgression,
of desertion (according to paragraphs 44 and 45 of the law referred
to, and to paragraph 80 of the Military Regulations, first part,
respectively). Therefore, if Richter had remained an Austrian
subject, he would have to be called to account for the said
punishable actions, and, moreover (according to paragraph 38, last
item, of the military law), would have to be held to perform his
neglected liability of presenting himself for military examination,
with the eventual consequences of removal from the age class and
conscription number and increased service in the sense of paragraph
44 of the military law.
But in view of the fact that Richter is—according to article I of the
treaty concluded with the United States of America on the 20th of
September, 1870 (Imperial and Royal Law Bulletin No. 74, ex 1871)—to
be treated as an American citizen, he can not be held liable to
trial and punishment under Article II of that treaty, for the
nonfulfillment of his military duty, nor be held subsequently to
perform this duty.
The provisions of this treaty were in no way violated by the imperial
and royal Bezirkshauptmannschaft at Schluckenau.
It is true that the imperial and royal Bezirkshauptmannschaft did
order John Richter to leave the district within eight days; but this
procedure can not be regarded as in contradiction to the treaty
referred to, as the latter contains no provision with reference to
the right of stay in Austria of American citizens, and in particular
does not grant them the right of indefinite stay. This right of stay
is therefore subjected to all those limitations which have been
established by the general binding laws of this country, and by
those which public considerations may require; to this applies in
particular item 5 of paragraph 2 of the law of the 27th of July,
1871, Imperial and Royal Law Bulletin No. 88, according to which
persons who are not Austrian subjects may be expelled either from
the entire territory in which that law has jurisdiction, or from a
certain part of it, if their stay in it becomes inadmissible for
reasons of public order or safety.
According to the investigations made, the ostentatious manner in
which 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. This apprehension is strengthened by
the fact that more than thirty persons from the district of
Schlukenau, who are liable to military presentation, are in
America.
In consideration of this fact the procedure of the imperial and royal
Bezirkshauptmannschaft in Schluckenau appears to be legally based,
and in view of the protection required by public interests also
appears to be fully justified; and the imperial and royal ministry
of the interior is therefore, to its regret, not in a position to
issue any order in behalf of John Richter.
The undersigned avails himself, etc.,
