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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.,

ADDISON C. HARRIS.

[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 14 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 calıing 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.,

ADDISON C. HARRIS.

(Inclosure 2.—Translation.) The foreign office to Mr. Harris.

VIENNA, March 15, 1901. 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, resul, 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 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 Bezirkshaupt-
mannschaft 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.,

SzscEN.
For the Minister.

Mr. Ilay to Mr. Herdliska. No. 7.]

DEPARTMENT OF STATE,

Washington, July 9, 1901. SIR: I have to acknowledge the receipt of dispatch No. 188, of April 26, 1901, reporting the expulsion case of John Richter, a nat uralized American citizen of Austrian birth.

Mr. Harris states that the Austro-Hungarian authorities claim that under the naturaliz ion treaty between the two countries there is no fixed time during which a naturalized American of Austrian origin may sojourn in that country, and that they may "expel him at pleas

Mr. Harris dissents from this view, but refers the matter to the Department.

The treaty contemplates that persons of Austrian origin naturalized in the United States may resort to their native country. It does not, however, fix the period of their sojourn there.

Whether such persons may be expelled from Austria, and when, would seem to depend upon the particular circumstances of each case. Undoubtedly the Austro-Hungarian Government has the right to expel from its territory persons injurious to peace and good order, but it is the reasonable contention of the United States Government 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. The treaty undoubtedly gives the right of inoffensive return, and that stipulation is not to be impaired by any construction which would virtually annul the treaty in an important particular. The Austrian law provides for the expulsion of aliens whose presence is inadmissible for reasons of public order and safety. The reason given by the Austrian foreign office for considering Richter's stay there undesirable is that “the ostentatious manner in which he 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 his mother took him to the United States, and would not have been subject to military service until he reached the age of 19, it might be questioned whether he left for the purpose of evading military duty. However, as Mr. Harris states that Richter was informed by the Austrian authorities that he might return to the place from which he was expelled and has made no further complaint, it would not seem desirable to take up this case with the Austrian Government. I am, etc.,

John Hay.

PASSPORT DENIED TO CARL SCHIMANECK.

Mr. Herdliska to Mr. Hay. No. 10.]

UNITED STATES LEGATION,

Vienna, July 10, 1901. Sir: I have the honor to lay before the Department for instructions the following case:

On the 2d instant, Consul Donzelmann, at Prague, sent to this legation the application for passport of one Carl Schimaneck, with the following report:

I have the honor to transmit to you, herewith inclosed, a passport application by one Carl Schimaneck, together with an old passport, a declaration of intention made by one Anton Schimaneck, who is claimed as having been the father of this applicant, a certificate of marriage establishing the fact of the applicant's parents having been married in the United States, and a certificate of birth of this applicant. The facts in the case of this applicant, as he has stated in this consulate this day, are these, viz:

His father emigrated to the United States in 1876, and shortly after his arrival there declared his intention to become an American citizen, as evidenced by the certificate herewith inclosed. The father died before completing his American citizenship, and having married between the time of declaring his intention to become an American citizen and his death, as the issue of this marriage was this applicant who was born in the United States. The mother of this applicant returned to her and her deceased husband's native country, which was Bohemia, belonging to the

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Emperor of Austria as the sovereign, taking with her this applicant, her child. The mother never perfected her American citizenship, as provided by law, and has remained ever since her return to Bohemia, which was in the year 1881, an Austrian subject, and the child so brought over here never left Bohemia, never knew a word of the American language, and has married here in Bohemia another subject of Austria, thus evincing every desire to forever remain here in Austria. The facts, then, are that the applicant was born of foreign parents while they were sojourning in the United States of America, and under the facts stated heretofore this applicant did not become an American citizen simply because he happened to be born in the United States. Indeed, the declaration of intention made by the applicant's deceased father is not valid in law, as it states that he declared himself to have been a subject of the Emperor of Germany, when in fact he never had been any other than a subject of the Emperor of Austria. But admitting for the sake of argument that this certificate is in conformity with the law governing the same, yet the applicant is not an American citizen because his mother, as well as himself, never complied with the law of the United States governing such cases. I do not think that our Government ought to be charged with the protection of this applicant, the law not permitting it.

As section 1992, Revised Statutes of the United States, expressly declares that “All persons born in the United States and not subject to any foreign power

are declared to be citizens of the United States,” Mr. Carl Schimaneck would appear to be a native citizen of the United States. It is true that he left the United States when but 4 years of age and has resided in Bohemia, the native country of his parents, ever since. It is also true that he has married an Austrian subject, and he does not appear to have any interests in the United States. And while he declares it to be his intention to return to the United States within two years, Consul Donzelmann says Mr. Schimaneck's real purpose in applying for a new passport is to enable him to obtain a license from the Bohemian authorities to engage in business in Bohemia. In the application for passport made before this legation on the 2d of August, 1894, Mr. Schimaneck also declared his intention to return to the United States within two years. This intention he did not carry out. But he has not applied for a passport since and it does not appear that his case is one where trouble is to be feared from the military authorities. He appears to desire the new passport solely for the purpose of obtaining a new concession to enter into business, and I have therefore the honor to lay the case before the Department with the respectful request that full instructions may be sent to me in the matter. Copies of the documents in the case as transmitted to me by Consul Donzelmann are respectfully inclosed herewith. I have, etc.,

CHARLES V. HERDLISKA.

[Inclosure 1.-Translation.]

CERTIFICATE OF BIRTH.

ST. JOSEPH'S CHURCH, Tremont, N. Y. Carl Schimaneck, son of Anton and Fanny Schimaneck, born on the 25th of February, 1877, was baptized on the 25th of July, 1877.

Witnesses: Franziska Heisler and Joseph and Maria Lauzansky.
Pastor: Rev. H. J. S. Tanner.
(SEAL.]

[Inclosure 2.-Translation.]

Anton Schimaneck, of Mirovitz, and Francisca Simek, of Ledenitz, Bohemia, were married in St. Nicholas Church, on the 2d of June, 1876, in the presence of the two witnesses, Joseph Tanzer and Joseph Boder, by the Rev. H. L. Fuchs, according to the Catholic rite. This is shown by the register of marriages on file in this church. [SEAL.]

J. P. HOFFMANN,

Rector of St. Nicholas Church, BROOKLYN, N. Y., June 18, 1881.

[Inclosure 3.] 1876. STATE OF NEW YORK,

In the Superior Court of the City of New York. 1, Anton Schimaney, do declare on oath that it is bona fide my intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly to the Emperor of Germany, of whom I am now a subject. Sworn this 5th day of June, 1876.

ANTON SCHIMANEY.

Thomas BOESE, Clerk. CLERK'S OFFICE OF THE SUPERIOR COURT OF THE CITY OF NEW YORK. I certify that the foregoing is a true copy of an original declaration of intention remaining on record in my office.

In witness whereof I have hereunto subscribed my name and affixed the seal of said court this 5th day of June, 1876. [SEAL.]

Thomas BOESE, Clerk.

Mr. Hay to Mr. Herdliska. No. 10.]

DEPARTMENT OF STATE,

Washington, August 20, 1901. Sir: The Department has received your No. 10 of July 10, 1901, submitting the application for a passport of Carl Schimaneck, and a presentation of his case by Consul Donzelman at Prague, who thinks the applicant is not entitled to protection as a citizen of the United States. It appears that he was born bere; that his father had declared his intention of becoming a citizen of the United States before the son's birth, but died before he secured naturalization; that the mother never secured naturalization as a citizen of the United States, and returned to Bohemia with the applicant when he was four years of age, and that he has himself never been in the United States since. He does not speak English, has married a Bohemian, is engaged in local business, and, as it would seem, is permanently settled in Bohemia. In considering the case, the question of the citizenship of the applicant's parents is not material, as Consul Donzelman seems to think it is, because birth in the United States of itself confers United States citizenship under the provisions of our laws. In construing these provisions the legation has correctly followed the numerous rulings on the subject by this Department (see The American Passport, pp. 102, 104, 105), and the rulings are themselves in full consonance with the decisons of the Federal courts. (See notably 35 Fed. Rep., 35+, and 169 U. S., 649.) If, therefore, the applicant were still in his minority, or were only temporarily abroad, there would be no doubt of his being entitled to the protection of a passport as a native citizen of the United States. The question really involved, however, is whether or not he has abandoned his right to that protection. The Department's circular instruction of March 27, 1899, on the subject of “Passports for persons residing or sojourning abroad,"contained the following quotation from Secretary Fish:

When a person who has attained his majority removes to another country and settles himself there, he is stamped with the national character of his new domicile; and

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