No. 63.]

Mr. Grant to Mr. Blaine.

LEGATION OF THE UNITED STATES,

Vienna, February 24, 1890. (Received March 17.) SIR: Having found it necessary on more than one occasion recently to ask special instructions relative to the propriety of issuing a certain passport, it is with considerable reluctance that I again recur to the subject, being most unwilling to appear to trespass on the patience.of the Department. It is, however, of importance, I think, that this legation should receive for its guidance the Department's opinion on one or two points relating to the issuance of passports in general, and to the application for a passport of one Bela Washington Fornét in particular. From the course recently taken by the authorities here in ordering the expulsion from this empire of certain naturalized citizens of Austro-Hungarian birth, and from a conversation which I had with Baron Pasetti, chief of section at the foreign office, I am convinced that the purpose of this Government is to deny, under certain circumstances, to former subjects of this empire who have been naturalized, not only in the United States, but in other countries, the right of domicile within the dominions of Austria-Hungary. It would seem that no restriction whatever is placed upon the emigration of such subjects of this crown as may choose to seek their fortune in other lands, or to their subsequent assumption of allegiance to the government within whose territories they may have found homes. When, however, such former subjects of this empire have emigrated at or just before the age when they would be required, under the laws of this country, to enter the army, this Government seriously objects to their return to the land of their nativity to engage in business, or otherwise to establish a residence, with an acquired allegiance to some foreign state, such a course, it is contended, is calculated to disturb public order, and to have an injurious effect generally upon the military system of this Government, inasmuch as the very presence among their old associates of these naturalized citizens or subjects of other powers operates to produce irritation and dissatisfaction in a community which has continued faithful in its allegiance to this empire. To state the situation more intelligibly, let us suppose, as is frequently the case, that a young Viennese emigrates to America when he is seventeen years of age. After remaining in the United States for five or six years, during which time he may have had the opportunity of gaining considerable business experience, he takes out his naturalization papers, and then at the age of twenty-two or twenty-three years returns to Vienna and engages in business on his own account. The companions of his youth, who have not emigrated, are, and have been for some years, rendering, and will for several more be required to render, military duty, the age at which subjects of the imperial and royal Government of Austria-Hungary are cited for service in the army being eighteen years, and the period of service continuing for nine years. It is apparent that these soldiers of the empire are at a great disadvantage when, in after years (their terms of military service having been completed), they attempt to enter into competition in business with the naturalized American who was formerly their associate. Not only has the latter secured the start on them by reason of the actual time during which he has been doing business for himself while they were in the army, but also by reason of the business education acquired in America during his minority, which he uses to advantage in the conduct of his affairs here. It moreover becomes a matter of every-day observation, that while the naturalized American

is enjoying all the privileges belonging to, he is subjected to none of the burdens imposed upon, an Austrian subject.

While the naturalized American may not go so far as to parade and boast of the enviable position to which he has attained (though it is said this is not infrequently the case), his very presence is, as I have remarked above, a source of discomfort to his quondam friends, and tends to create discontent and possibly resentment towards a form of government believed to be for the best interests of this people. It is on these grounds that the imperial and royal ministry is decided in its objection to the return, during the military period, of a former subject of the empire who has acquired a foreign allegiance, and it is my impression, derived from informal conversations on the subject in Klamer's case (Instruction No. 25, of October 8, 1889), that this Government reserves to itself, notwithstanding treaties of naturalization, etc., the right to expel such naturalized citizens or subjects of foreign powers, whenever it believes its interests demand such action. A decree of expulsion is not, it is argued, intended as a punishment of a foreigner, but as a means of self-protection. It would seem to be almost superfluous for me to observe that the class of citizens herein referred to, while regarded as dangerous to this Government, are certainly useless to that of the United States. Year after year they maintain a residence abroad, unless interfered with, enjoying certain immunities by virtue of their American citizenship, and rendering no equivalent whatever to the United States Government. Such being the situation of the AustroHungarian authorities with respect to this subject, and the same having become, it is supposed, rather generally known through the issuance of several decrees of expulsion, naturalized American citizens residing in this empire have been spurred to unusual activity in providing themselves with passports in order that they may be fortified at least to that extent in resisting any interference with their rights of domicile.

The facts set forth in many of the applications from such naturalized American citizens give rise to serious doubts as to their right to receive passports, and whereas I should regret to accord the protection of the Government where it is not due, it would concern me still more to decline to grant a passport, through a misinterpretation of laws and facts, where the applicant was justly entitled to it. Certain questions of fact in regard to the issuance of passports, not appearing to be covered by the regulations in regard thereto, I have the honor to ask the Department's views on the following points:

First. For how many years may a citizen of the United States reside abroad without losing his American domicile ?

Second. Would any limit of time in this regard apply to native as well as naturalized citizens, or only to the latter?

Third. Applicants for passports being required to state under oath the time within which they intend returning to the United States, what is the longest period of time they may fix?

Fourth. If an applicant refuses to swear that he will return to the United States within a fixed time, should a passport be refused him? Fifth. Does the limit of time referred to in questions three and four, apply equally to native born and to naturalized citizens?

Sixth. If application is made to me for the renewal of a passport, and it appears on examination that the time has expired within which the bearer of the old passport stated his purpose of returning to the United States, and that nevertheless he has not been to America to resume his duties of citizenship, should a renewal of his passport be declined?

I can readily understand that answers to some, and perhaps to all, these questions would depend largely upon the circumstances of each individual case, and, if the Department should feel satisfied to have me do so, I will pass upon each application to the best of my ability in the light of general instructions sent to the legation during the incumbency of some of my predecessors and animated by a spirit of perfect fairness to the applicant. At the same time such specific principles, suggested by the above questions, as the Department may be able to lay down for my guidance would of course be most acceptable.

The case of Bela Washington Fornét, referred to in the first paragraph of this dispatch, is as follows:

Fornét was born in New York July 19, 1857, his parents being at the time naturalized American citizens. He left the United States on the 15th of October, 1864, when only a little more than seven years old, since which time he does not appear to have returned to the land of his nativity. When about twenty-four years of age he appeared before the mayor of Budapesth and the United States vice-consul at Budapesth, of which city he is a resident, and declared his purpose of retaining his American citizenship. He has resided abroad about twenty-six years and apparently has never before applied for a passport. It is evident that he has never rendered the duties of citizenship to the United States, and it is submitted whether he is entitled to the protec tion of the Government. I have declined to grant his application for a passport in advance of instructions, and now respectfully request your views in his case. His reason for applying for the passport is that he wishes to go to America. Observing that such a document would not, it is believed, be required of him to carry out his alleged purpose, and inclosing a copy of his application,

I hereby apply to the legation of the United States at Vienna for a passport for myself, as follows: Born at New York on the 10th day of July, 1857.

In support of the above application I do solemnly swear that I was born at New York City on or about the 10th day of July, 1857; that my father is a naturalized citizen of the United States; that I am a native and loyal citizen of the United States temporarily residing at Barcstelep; that I left the United States on the 15th day of October, 1864; that I am the bearer of passport No., issued by —, on the day of 18-; and that I desire the passport for the purpose of going to America.

Oath of allegiance.

Further, I do solemnly swear that I will support, protect, and defend the Constitution and Government of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely, without mental reservation or purpose of evasion: So help me God. BELA WASHINGTON FORNÉT.

CONSULATE OF THE UNITED STATES AT BUDAPESth.

Sworn to before me this 10th day of February, 1890.

LOUIS GERSTER.

Description of applicant.

Age, thirty-three years; stature, 5 feet 6 inches; forehead, straight; eyes, gray; nose, medium; mouth, medium (mustache); chin, round (bearded); hair, brown; complexion, fair; face, oval.

Identification.

BUDAPESTH, February 10, 1890.

I hereby certify that I know the above-named Bela Washington Fornét personally and know him to be a native-born citizen of the United States, and that the facts stated in his affidavit are true to the best of my knowledge and belief.

ALEXANDER BAMSHOS.

No. 67.]

Mr. Grant to Mr. Blaine.

LEGATION OF THE UNITED STATES,

Vienna, March 11, 1890. (Received March 31.) SIR: I have the honor to inclose herewith for your information a copy of a translation of a note which I have just received from Baron Pasetti, chief of section at the imperial and royal ministry of foreign affairs, which communication is in reply to a note addressed to Count Kalnoky by me, in compliance with your letter of instructions No. 25, under date of October 8, 1889, in reference to the expulsion from this empire of Hugo Klamer, a naturalized American citizen of Austrian birth. My note to Count Kalnoky was in spirit and language strictly in accordance with your instructions.

The only points brought out by this note from Baron Pasetti, which have not already been the subject of correspondence, and of which the State Department has not already been fully advised, are

First. The intimation on the part of Baron Pasetti that a native of Austria or Hungary, who by emigration has become a citizen of the United States and afterwards returns to this monarchy, occupies so enviable a position that he fears that the example might be followed by others. Second. The intimation that, in consequence of the framing of the "imperial military law No. 153, of October 2, 1882, the authorities here now view or interpret the treaty of September 20, 1870, from a standpoint different from that taken by the United States Government. It is assumed that both governments were in accord as to the interpretation of this treaty until after October 2, 1882.

Third. The statement that "a change in the situation can only take place when the provisions of the treaty of 1870 are revised," and, further on, "the imperial royal minister of foreign affairs intends to revert once more to the principles involved in this question," all of which, it is presumed means that it is the intention of the imperial royal minister of foreign affairs to submit to the United States Government proposi tions for the amendment of the treaty of September 20, 1870. If the United States Government is willing to admit the present interpretation given to the treaty of September 20, 1870, by the Austrian authorities, then it is impossible to see why the imperial authorities should desire any change to be made in the provisions of the treaty. It might also seem useless to amend the provisions of a treaty when the officers of one of the nations concerned claim the right to change the interpretation of the treaty whenever their Government finds it convenient to make a new law. It seems not to have occurred to the baron that the authorities at Washington may refuse to submit to the changes made

by the Austrian authorities in the interpretation of this treaty, or that the Government at Washington might refuse to negotiate for an amendment, upon the ground that there were cases pending which the American Government considered violations of the treaty on the part of the Austrian Government.

In awaiting, Mr. Secretary, your further instructions,

I have, etc.,

[Inclosure in No. 67.-Translation.]

Baron Pasetti to Mr. Grant.

F. D. GRANT.

VIENNA, March 5, 1890.

The honorable envoy of the United States of America, Col. Frederick D. Grant, was pleased to revert to the expulsion of Hugo Klamer in his esteemed note of November 12 last, No. 23, and to ask for information relative to the charges preferred against him by the director of police of this city.

The ministry of foreign affairs has accordingly reexamined the records relating to Klamer's expulsion, and has come to the conclusion that the proceeding adopted at the time by the authorities was correct and lawful. The expulsion took place in conformity with article 2, section 5, of the law of June 27, 1871, No. 88, because his stay in Austria was considered inconsistent with public order.

Klamer, at the time he was still an Austrian citizen, had repeatedly neglected to obey the summons to perform his military duty, and had acquired his American citizenship at the very age when he was liable to serve in the army, without having received the permit to emigrate, which the Austrian laws prescribe to persons under such circumstances. Not coming under the provisions of 1, 2, and 3, of Article 2, of the treaty of September 20, 1870, he was not, on his return to Austria, held to perform subsequent military service. The treaty has therefore not been violated, inasmuch as the United States citizenship of Klamer was recognized.

The above-mentioned treaty, however, does not deprive the imperial 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 the year 1870.

The naturalization took place, therefore, when regarded from an Austrian legal point of view, doubtless in fraudem legis. The return of such a person to his former home for the purpose of final settlement, is an open disregard of the laws of the country, calculated not only to prompt others to do likewise, but also to excite the envy of those subjects who perform the duties imposed upon them.

In the note of November 12 last it is admitted that Klamer, after having been summoned for military duty, had taken steps to have his name struck from the army list; that he was aware, therefore, of his liability; and that he acquired his United States citizenship without awaiting the result of his application.

For these reasons the imperial and royal Government must protest against the return of such individuals as being detrimental to public order.

The provisions of the Austrian and of the Hungarian military laws of October 2, 182, No. 153, were not framed until after the treaty of September 20, 1870, had been concluded. The result is that the United States Government does not always judge the proceedings of the authorities here against former Austrian or Hungarian subjects from the same point of view, however justified the measures may be, according to our laws.

A change in this situation can only take place when the provisions of the treaty of 1870 are revised, which gave rise to these misunderstandings, keeping intact the stipulations which have proved otherwise so beneficial and well adapted. The Government of the United States will perhaps be the more ready for such a revision, as it can hardly be desirous to receive an increase of a class of individuals who remain in the country only long enough to acquire naturalization and then return to their former home to live, under the protection of the treaty. The I. and R. ministry of foreign affairs intends to revert once more to the principles involved in this question.

Leaving it to the option of the honorable envoy of the United States to make his Government acquainted with the contents of the foregoing statement, the undersigned begs to avail himself, etc.

(For the minister of foreign affairs.)

M. PASETTI.