Mr. McCormick in the above note made use of the case of one Josef Janco
(brought to the notice of this embassy in the Department’s No. 19 of
November 19, 1901, and upon which he reported in his No. 53 of December
29, 1901,) as demonstrating the ignorance of many local officials as to
the character of a passport and the respect to which such a document and
its bearer are thereby entitled.
Mr. McCormick then submits the following suggestions to the consideration
of Count Goluchowski, concerning the prima facie evidence of the
citizenship of a bearer of an American passport:
And closes by saying that if an understanding formulated
upon the above lines could be reached, and adequate instructions issued
to the local authorities, the annoying; incidents, occasioned by the
latter’s ignorance, which form the subject of so large a part of the
official correspondence between the two Governments, would cease.
The ministry for foreign affairs, in reply to the above, and after
denying the truthfulness of many of Mr. Janco’s allegations, informs the
embassy that the Royal Hungarian ministry of the interior, in compliance
with the proposition of article 5 in Mr. McCormick’s note above quoted,
has seen fit to instruct the proper authorities within its jurisdiction
to furnish the bearer of an American certificate of naturalization or of
a passport, whenever these documents may be taken from him by said
authorities, with a certificate or receipt setting forth the reasons
which render such seizure necessary.
This regulation, if properly complied with upon the part of the local
authorities, will certainly greatly lessen the number of complaints from
naturalized American citizens formerly subjects of this Monarchy, as the
majority of emigrants to the United States from this Empire are natives
of Hungary.
[Inclosure in dispatch No. 139, October
15, 1900, from Austria-Hungary, printed in connection with the
foregoing.—Translation.]
Count Lützow to
Mr. Herdliska.
Imperial and Royal Ministry of the Imperial and Royal
House and of Foreign
Affairs.
55461/7]In the esteemed note of date the 17th of September last, F. O., No.
105, the honorable chargé d’affaires of the United States of
America, Mr. Charles V. Herdliska,
[Page 58]
has thought fit to draw attention to an
apparent contradiction, contained in the note of this ministry of
the 14th of August, of the current year, No. 46561/7, inasmuch as,
although in the first place the prima facie validity of American
passports and documents of naturalization (in so far as these papers
do not bear the external signs of forgeries or present other
invalidating characteristics) is in principle therein acknowledged,
the right is nevertheless claimed—as regards those American citizens
who having formerly been Austrian or Hungarian subjects emigrate to
America without having fully discharged their military duties and
after the acquisition of American citizenship return to this country
(even when the papers of legitimation with which they are furnished
are perfectly regular)—for the competent authorities of this land to
institute inquiries as to whether the acquisition of American
citizenship by the individuals in question has been made in
accordance with the provisions of the treaty of the 20th of
September, 1870; that is to say, whether in the circumstances of
these individuals all the conditions of Article 1 of said treaty are
complied with.
In answer to this the Imperial and Royal ministry of foreign affairs
has the honor most respectfully to draw the attention of the
honorable chargé d’affaires of the United States of America to the
fact that the note of this ministry, above referred to, does not go
beyond the simple assertion of the following position: The
Governments in Vienna and Budapest find themselves, in principle, in
perfect agreement with the Government of the United States of
America in that they, on their side, recognize the prima facie
validity of American papers of legitimation as proof that the status
of American citizenship asserted by such papers for their owner is
in fact his due and legal status; with this declaration of principle
must, however, be associated the clear and emphatic statement that,
as regards persons who have emigrated from the Monarchy and acquired
American citizenship before the discharge of their military duties,
both the Governments of the Monarchy must reserve to themselves the
right to examine into the circumstances under which the persons in
question have become citizens of the United States of America.
This recognition in principle (as expressed in the above-mentioned
note of this ministry) of the prima facie validity of American
papers of legitimation is, according to the view taken by this
ministry, by no means confined to the documents of such persons as
have been American citizens from their birth, but includes also
those of naturalized citizens of the Union, persons of originally
foreign nationality—therefore of Austrian or Hungarian origin among
others—whose American citizenship is without doubt prima facie
proved by properly executed documents of this sort.
The simple fact, however, that a person originally of Austrian or
Hungarian nationality, who has become naturalized in the United
States of America, is in possession of a regular and therefore prima
facie valid American passport and papers of legitimation, can by no
means be regarded as affording an absolute, incontestable and
undoubted guaranty that the person in question, in acquiring
naturalization in the United States, has proceeded in accordance
with the provisions and assumptions of the treaty of 1870.
For in this convention certain positive and exactly defined
conditions are set forth, upon the fulfillment of which is made to
depend whether a former subject of the Monarchy, who has been
naturalized in America, is to be recognized as an American citizen
within the meaning of the treaty, and whether the rights secured by
treaty to American citizens are to be accorded to such a person.
Further, it is also in this very treaty expressly provided that in
some specified cases a former subject of Austria or Hungary—even
though his naturalization in America be perfectly regular and in
order—shall, by the authorities of his original domicile, continue
to be held answerable before the competent court of criminal
jurisprudence for certain military offenses committed in the time
prior to his emigration.
It is therefore clear that the authorities of this country must of
necessity have the right, in a special case such as one of those
above referred to, by means of an official inquiry into the special
circumstances attaching thereto, to inform themselves with certainty
(and in this matter the simple possession of American papers of
legitimation, whether passport or certificate of citizenship, does
not of course afford even prima facie evidence) as to whether the
material conditions, which the Treaty of
1870 attaches to the recognition by the authorities of this country
of the American citizenship, acquired by naturalization, of a former
subject of the Monarchy have in fact been complied with, such
compliance constituting the condition upon which, alone, the
enjoyment of the rights guaranteed by treaty can be conceded to the
naturalized person in question.
To the reservation contained in the note of this ministry of the 14th
of August last, no significance beyond that here explained is
therefore to be attached, it being simply an assertion of the right
of the authorities of this land (a right which they have also
invariably asserted), in individual cases, in which it is in their
opinion necessary to assure themselves by inquiry as to whether in
the naturalization of a
[Page 59]
subject of the Monarchy in the United States of America the
provisions of the treaty have in fact been duly and fully complied
with.
The claiming of this right for the authorities of this land does not,
according to the view taken by this ministry, in any degree derogate
from the general recognition in principle of the prima facie
validity of American documents of legitimation, seeing that these
latter assert nothing more than that their possessor is, from the
point of view of the legislation of the United States of America, to
be regarded as an American citizen. Such papers can not, on the
other hand, be regarded as incontrovertible documentary evidence
proving that in each and every case naturalization has proceeded in
conformity with all the treaty provisions bearing on this
subject.
An inquiry of this sort, instituted by the authorities of this land,
can not therefore, as has been shown, be held to involve—as the
honorable chargé d’affaires of the United States of America seems to
imply—anything approaching an examination or verification by these
authorities of papers of legitimation emanating from the competent
American authorities, in respect of their legality or validity, from
the standpoint of American legislation.
Such an inquiry has, on the contrary, no other object than the
attainment of certainty as to whether, in some special case, the
provisions of the treaty between the Monarchy and the United States
of America have been duly observed.
That the instituting of such an inquiry, which is, as has been shown,
confined to ascertaining whether those treaty provisions have been
complied with, upon which the recognition of an act of
naturalization has been made dependent, can not be prohibited to the
authorities of this land would seem to be beyond all doubt, in view
of the fact that the matter dealt with is the fulfillment of the
stipulations of treaty; it being undeniably within the competence of
either party to a treaty to assure itself, in every separate
instance as it arises, as to the due observance of the provisions of
that treaty by the other party thereto.
That in cases such as those in question circumstances may occur in
which an inquiry of this sort can not be regarded as superfluous,
may be illustrated by quite a recent example in which the Imperial
and Royal ministry for foreign affairs in its note of the 16th of
June last, No. 34101, basing its proceeding upon information
furnished by the United States legation itself, had the honor to
draw attention to the case of a certain Franz Rath, to whom American
citizenship had apparently been accorded (by means of a certificate
of naturalization issued by the city court of Utica) after a shorter
period of residence in the United States of America than that
stipulated for, namely, five years, by the terms of the treaty.
Further, in the esteemed note of the 26th of February last, No. F. O.
52, the envoy extraordinary and minister plenipotentiary, Mr.
Addison C. Harris, stated that he had himself occasionally had to
cancel American passports, as having been illegally issued.
While the Imperial and Royal ministry for foreign affairs believes
that it has on the one hand succeeded in showing in the course of
the above observations that its note of the 14th of August last is
in no degree open to the charge of adopting mutually contradictory
positions, it regards it, on the other hand, as a matter of course
and self-evident, and not needing the support of such arguments and
special considerations as have been adduced in this connection, that
the right must of necessity be conceded to the authorities of this
country when instituting an inquiry such as has been treated of in
the above, and for the purposes of such inquiry not only to examine
the documents of naturalized American citizens who have returned to
the Monarchy, but also when necessary to retain temporary possession
of the same, in order that they may have in hand such concrete data
as are likely to prove essential to the prosecution of any further
examination that may be desirable, as well as a positive documentary
basis for the due eliciting of the actual facts of the case
occupying their attention; and this necessity is specially likely to
arise when the matter in hand includes the removal of such a
person’s name from the army lists of Austria-Hungary.
This declaration of the true reasons and objects by which the
authorities of this country are influenced, when, as occasionally
happens, they retain for a time possession of the American papers of
legitimation of naturalized citizens of the Union before returning
them to their owners, should certainly be sufficient to prove that
such temporary retention can not fairly be regarded either as an
infringement of the naturalization treaty or as inconsistent with
the general attitude to this subject, lately adopted by the Imperial
and Royal ministry for foreign affairs.
It having, however, been pointed out by the honorable chargé
d’affaires of the United States of America that in the return to
their owners of passports and other documents of legitimation taken
from naturalized American citizens very considerable delay not
infrequently occurs, the Imperial and Royal ministry for foreign
affairs is by no means disposed to call in question the
inconveniences that may, under some circumstances, result for the
naturalized American citizen in question from the
[Page 60]
unduly prolonged retention of these
documents. The Imperial and Royal ministry for foreign affairs has
accordingly, in connection with the four cases particularized in the
esteemed note of the 10th of September last, No. F. O. 101, in which
it is asserted that the papers of legitimation of American citizens
were retained for an unreasonably long period before being returned
to their owners, drawn the attention of the ministers of the
interior in Vienna and in Budapest to this administrative
shortcoming, with an earnest representation that whatever is
possible be done with a view to its correction.
In compliance with this representation, the Imperial and Royal
ministry of the interior has already taken occasion to address to
the administrative authorities within the sphere of its jurisdiction
an injunction, impressing upon them as an imperative duty, in all
cases in which it appears necessary for the attainment of the ends
above intimated, to retain temporary possession of papers of
legitimation belonging to naturalized American citizens who return
to the Monarchy, to withhold such documents from their owners only
so long as may be absolutely necessary; and, further, that in all
dealings with cases of this sort the utmost possible dispatch shall
at all times be used.
With reference to the desire expressed in connection with this
question by the honorable chargé d’affaires of the United States of
America to be put in possession of copies of the orders issued to
the authorities of this country, and to which reference was made in
the note of this ministry of the 14th of August last, No. 46561/7,
the Imperial and Royal ministry for foreign affairs regrets not to
be in a position to comply therewith, it being a general principle
of universal application here that the orders and instructions
issued to the administrative authorities of this country, and
intended for their use exclusively in the discharge of their
official duties, are not communicated to foreign governments.
At the same time, the Imperial and Royal ministry for foreign affairs
does not hesitate to characterise as inconsistent with these very
orders the proceeding—commented upon by the honorable chargé
d’affaires of the United States of America—of the sheriff
(bezirkshauptmann) of Rapczyce, who, citing in justification of his
action a ministerial edict which had been addressed to him,
requested in his letter of the 7th of September last, No. 12093, to
the United States legation, to be supplied with translations of an
American passport and of a certificate of naturalization belonging
to a certain Beni Balamut, the orders in question being those issued
by the Imperial and Royal ministry of the interior to the
administrative authorities under its control defining the procedure
to be adopted in cases in which doubt might occur as to the contents
or the authenticity of North American passports or as to the
identity of the owner of such documents.
In complete accordance with the suggestions on this subject contained
in the esteemed note of the 26th of February last, No. F. O. 52, the
administrative authorities—including, of course, those in
Galicia—under the control of the Imperial and Royal ministry of the
interior, have received instructions that such American passports as
can not, for lack of knowledge of the English language, be duly
examined by the office in question may, in case of need, be
forwarded to the nearest American consular officer with an
appropriate inquiry, but certainly not with a request that they be
translated. On the other hand, however, in all cases in which a
well-founded suspicion is present that an American passport is a
forgery, or is being used by a person who is not identical with the
person whose name it bears, these facts, with all available proof in
support of them, are to be reported direct to the Imperial and Royal
ministry for foreign affairs, in order that this latter may
associate itself with the legation of the United States in the
prosecution of a searching inquiry into the facts of the case.
It having thus been shown that the standing orders in question are in
complete accordance with the wishes expressed by the minister, Mr.
Addison C. Harris, the Imperial and Royal ministry for foreign
affairs regards it as its duty to approach the honorable chargé
d’affaires of the United States of America with the most respectful
request that the general instructions (hitherto held back) to the
consular officers of the United States of America established in the
Monarchy, dealing with the above-mentioned modus procedendi, may now
kindly be issued with as little delay as possible, to the end that
new complications may not in future arise for lack of such
instructions to the American consular offices concerned.
From what precedes it must be self-evident that, in addressing the
above-mentioned request to the legation of the United States of
America, the imperial and Royal sheriff (bezirkshauptmann) of
Rapczyce was simply acting under a certainly most regrettable
misapprehension, as will be represented with appropriate comment to
that officer.
Finally, with reference to the cases of Danislowicz, Kreswirth,
Turck, and Schesny, to which the attention of this ministry was
directed by the esteemed note of the 10th
[Page 61]
of September last, No. F. 0.101, in which cases
the return of the American papers of legitimation taken from the
persons named by the Austrian and Hungarian authorities has been
unduly long delayed, the Imperial and Royal ministry for foreign
affairs lost no time, immediately on receipt of the above esteemed
communication, in informing the ministries in Vienna and Budapest as
to the circumstances described, with the request that the necessary
steps might be taken without delay, unless some insuperable obstacle
should really stand in the way to hinder this from being done, to
secure the immediate return of the papers in question to the persons
named.
According to a preliminary communication from the Imperial and Royal
ministry of the interior, it also on its part immediately addressed
a telegram to the Imperial and Royal governor (statthalter) at
Lemberg, directing his attention to the complaints made by Alexander
Danislowicz and Ignatz Kreswirth, and hopes very shortly to be in a
position, as the result of this proceeding, to make a further and
detailed communication on this subject.
The Imperial and Royal ministry for foreign affairs has also, in the
interim, received a preliminary telegraphic communication from the
Royal Hungarian ministry of the interior, containing the information
that his American certificate of naturalization has already been
returned to Michael Turck, and that, in the matter of Rudolf
Schesny, the deputy sheriff (vicegespan) of the comitat of Saros has
been requested to send in bis report upon the case with all possible
dispatch.
While doing itself the honor most respectfully to acquaint the
honorable chargé d’affaires of the United States of America of the
foregoing, the Imperial and Royal ministry for foreign affairs
reserves for a future occasion the further separate consideration of
the special cases in question.
The undersigned avails himself at the same time of this opportunity
to renew to the honorable chargé d’affaires, etc.
Vienna, September 29,
1900.
For the minister:
Lützow.
