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years named Taeger, whose passage he agreed to pay. On reaching the Austrian frontier the authorities accepted Mr. Kenig's passport, which was issued in Washington in May, 1897, as a sufficient identification of himself and his wife, but immediately arrested Taeger, who had not obtained the permit which is necessary to enable an Austrian subject to cross the frontier, and who had no document. of any kind to exhibit. Taeger was sent back to his home at Busk, while Kenig was bound over to answer the charge above stated, his money and passport being taken from him and held by the authorities as a sort of bail for his appearance before the district court at Taworzno. When he appeared there, he was advised that the case had been transferred to the circuit court at Źloczow, and he was ordered there for trial. He did not appear, however, but proceeded to Vienna and made a complaint to the United States legation. He admitted that he was paying Taeger's passage to the United States, and intimated that if he could obtain sufficient money he would disregard the summons of the court and go directly to America. In January, 1897, he notified the legation by mail that he had taken this course. The legation then made a statement of the case to the imperial minister of foreign affairs, requesting that "justice" be done, and that Kenig's passport and money be returned to him. It appeared by the imperial minister's reply that the money and passport were held pending a final determination of the case, and that the money would be used either wholly or in part to pay the costs of the legal proceedings.

The Department of State approved the purpose of the legation "to press for an immediate disposal of the case, and for the return in whole or in part of the money belonging to Mr. Kenig;" but added: "If the action of the Austrian court in retaining the funds taken from Mr. Kenig with the object of defraying from them the cost of the proceedings against him in the event of his conviction is in accordance with Austrian law, as is alleged, the Department would not be disposed to contest the claim. Under our system of law the money would probably not be taken from one accused of such an offense upon his arrest, but it does not follow that such practice founded upon the law of a country is not proper and valid."

Mr. Hay, Sec. of State, to Mr. Herdliska, chargé at Vienna, March 4,
1899, For. Rel. 1899, 22.

See, for the legation's report on the case, For. Rel. 1899, 11-14.
The circuit court at Zloczow, February 11, 1899, decided, on motion of
the state's attorney, to withdraw the action against Kenig and to
return to him his money and passport, which was done. (For. Rel.
1899, 23, 24.)

November 7, 1899, the Austrian legation at Washington presented to the United States a proposal for a modification of the naturaliza

tion treaty of September 20, 1870. The reason given for the proposal was that for a number of years a numerous class of people in Austria-Hungary had been making use of the stipulations of the treaty for becoming nominally citizens of the United States, with the sole object of living in Austria-Hungary in defiance of its military laws. After having obtained naturalization in the United States at an early age they had, said the Austrian Government, returned to the country of their origin intending to live there permanently, but invoking their American citizenship when called upon to fulfill military duty. "The United States Government," said the Austrian proposal, can have no possible interest in the acquisition of a class of citizens who fulfill none of their duties of citizenship toward them, and look upon American citizenship merely as a loophole to avoid the laws of the country in which they intend to live. Nevertheless, they feel obliged to extend their protection to these mala fide citizens, and the Austro-Hungarian Government, bound by the stipulations of the treaty, had no other way to escape from the demoralizing influence of these people but by expelling them, in virtue of the right of every government to close its territory against undesirable aliens." It was therefore proposed (1) that the obligation to recognize naturalization under article 1 of the treaty should be made conditional on the act of expatriation not having taken place in contravention of the laws of the country of origin, or (2) that the stipulation that naturalized persons remained liable to trial and punishment for acts committed before their emigration should be freed from the restriction imposed in article 2 of the treaty, which provides that a citizen of the Austro-Hungarian monarchy, naturalized in the United States, shall not, on his return to his original country, be held to military service or remain liable to trial and punishment for the nonfulfillment of military duty.

The United States declined to accept the proposal on the ground that either amendment would annul all the beneficial provisions of the treaty relating to subjection to military duty. It was admitted, however, that there were " doubtless grave abuses of the privileges of naturalization."

For. Rel. 1899, 79-80.

See, in a similar sense, as to prior proposals of a like kind, Mr. Frelinghuysen, Sec. of State, to Mr. Taft, min. to Aust.-Hung. No. 48, Aug. 25, 1883, MS. Inst. Aust.-Hung. III. 252; Mr. Wharton, Act. Sec. of State, to Mr. Grant, min. to Aust.-Hung. No. 140, Aug. 20, 1891, MS. Inst. Aust.-Hung. III. 622.

"The Department is quite of opinion that an attempt to make use of the treaty merely for the purpose of escaping the burdens which may be involved in bearing allegiance to either of the contracting parties should be discontinued.” (Mr. Blaine, Sec. of State, to Mr. Grant, min. to Aust.-Hung. May 16, 1890, For. Rel. 1890, 15.)

(2) PRACTICE OF EXPULSION.

$399.

399.

"The chargé d'affaires ad interim of the United States of America has the honor to invite the attention of his excellency Count Kalnoky, imperial and royal minister of foreign affairs and of the imperial household, president of the council, to the inclosed copy of an order of expulsion addressed to Mr. Antonio Chirighin, a naturalized citizen of the United States.

"According to Mr. Chirighin's statement to this legation, he, an Austrian subject, left his country in 1868, emigrated to the United States, and after a residence of eleven years was naturalized and became a citizen of the United States.

“Having some family business to attend to at Merce, in the island of Brazza, Dalmatia, he returned to Austria-Hungary, apparently quite recently, as his passport is dated at Washington, July 26, 1886. "His conduct does not appear to have been in any manner subject to criticism, and his only offense, as your excellency will see by the inclosed order of the local authorities, seems to have been that he has availed himself of the privileges distinctly accorded to the subjects of Austria-Hungary by the convention between AustriaHungary and the United States of 1870 relating to naturalization.

"The undersigned believes that on an examination of the subject his excellency the imperial and royal minister of foreign affairs will cause to be issued such instructions as will secure to Mr. Chirighin such hospitality and protection as is accorded by the United States to subjects of Austria-Hungary visiting that country for purposes of business or pleasure, and such as will enable him to transact freely and fully that business which caused his visit to the province of Dalmatia."

Mr. Lee, chargé at Vienna, to Count Kalnoky, Sept. 25, 1886, For. Rel. 1887, 14.

The order of expulsion reads as follows:

"TO ANTONIO CHIRIGHIN, of Girolomo, Merce:

"As a result of the suggestion of the 3d of September, 1886, which contained four propositions, the I. and R. district captain decides to inform you that, according to the interpretation of the last line of Article II. of the state treaty of 20 September, 1870, B. L. I. 1871, No. 74, no penal procedure will be taken against you concerning your military (conscriptional) duties.

"Considering, however, that the obtaining of the rights of American citizenship does not exclude the idea (point) that it was but a subterfuge to release you from the duties of the conscription which were imposed upon you by law as a citizen of Austria;

"In view that the adoption of such a course might serve as a public scandal and suggest to others to follow the bad example:

"I, by these presents, invite you to take immediately the steps necessary
to reacquire your original (ancient) citizenship, and subsequently
to present yourself voluntarily to answer the requirements of the
law of conscription, or, on the other hand, to quit the countries
represented in the councils of the Austrian Empire; to which end
I name the 1st day of October of this year as the last day for your
sojourn in those countries; this date having elapsed without your
having departed, it will become my duty to proceed, out of respect
for the public order, against you according to the fifth line of para-
graph 2 of the law of July 27, 1871 (B. L. I. No. 88); that is to say,
I must proceed to your expulsion from the above-named countries.
"The inclosed 38 soldi are the residue of the money paid by you in
advance for the purpose of telegraphing to the gendarmerie at San
Pietro.

66

SPALATO, 3 September, 1886.

"The I. and R. district captain,

"TRUXA."

"The order of expulsion admits the fact of American citizenship, and, by giving the alternative of leaving the country or reassuming the former status of Austrian citizenship, seems also to admit not only that Mr. Chirighin has committed no offense against the laws of the Empire since his return, but that he is a desirable person to have as a citizen.

"His only offense appears, from these papers, to be that he became an American citizen without having fulfilled the obligations of the Austrian conscription laws, and returned to his former home.

"The difficulty and delicacy of this class of cases arises from the undoubted legal rights possessed here by the chief local officers to decree, in the exercise of their police duties, the expulsion of any foreigner who disturbs, or who they believe will disturb, the public weal. "While I should not feel disposed to dispute the right of one government to expel the citizens of another country for cause, I do not see that we can accept as sufficient cause the doing of acts which our treaty provides shall be legal.

"The order having been brought to my official notice, I deemed it proper to assert, in the broadest way, our treaty rights,

I hope that the course pursued may meet with your approval."

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and

Mr. Lee, chargé at Vienna, to Mr. Bayard, Sec. of State, Oct. 4, 1886, For. Rel. 1887, 13. Your course is approved by the Department." (Mr. Bayard, Sec. of State, to Mr. Lee, Nov. 3, 1886, For. Rel. 1887, 16.)

66

My action in the case as therein reported has resulted in the rescinding of the said order of expulsion, I have informed Mr. Chirighin of the result and cautioned him to be very prudent in his conduct, as I believed it would not be possible to secure a like result a second time in the same case." (Mr. Lee to Mr. Bayard, March 1,1887, For. Rel. 1887, 18.)

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Hugo Klamer was born in Vienna, Austria, in 1859, and came to the United States in 1873 at the age of fourteen. In 1883, when nearly twenty-four years old, he was naturalized. In 1885, owing to the advanced age of his father, he returned to Vienna. He was twice subsequently called upon to appear before the authorities as a fugitive from military service, but upon exhibition of his certificate of naturalization the proceedings against him were discontinued. In 1887 his father died and he and his brother undertook the settlement of their deceased parent's business. On January 15, 1889, the imperial-royal director of police issued an order under paragraph 323 of the penal code of 1852, directing his expulsion on or before the 27th of that month. When the case was brought to the attention of the Austrian Government, the imperial-royal foreign office stated that Klamer, before he was naturalized, had received three calls for military duty in Austria; that he was not, however, to be punished for non fulfillment of military duty, but that his expulsion was "decreed on the ground of public order, a right which every government must reserve for itself." The foreign office adhered to this view, although the time of Klamer's expulsion was afterwards postponed till September 1, 1889. The Department of State expressed the opinion that under all the circumstances of the case, including Klamer's early emigration to the United States, his long residence. there, and the object of his return to and residence in Austria, his expulsion was not justified, and the legation was instructed to bring the matter to the attention of the imperial-royal ministry for foreign affairs in that sense.

Mr. Lawton, min. to Austria-Hungary, to Mr. Bayard, Sec. of State, March 2, 1889, For. Rel. 1889, 21; Mr. Blaine, Sec. of State, to Mr. Lawton, March 22, 1889, id. 23; Mr. Lawton to Mr. Blaine, April 13, 1889, id. 24; Mr. Blaine to Mr. Grant, min. to Austria-Hungary, Oct. 8, 1889, id. 27.

In this, as in other and subsequent cases, the action of the Austro-Hungarian Government was based, not upon any allegation of offence within the terms of Art. II. of the naturalization treaty of 1870, but upon the allegation that the individual did in fact leave Austria with a view to avoid military service and that his presence in that country was undesirable. (See Mr. Adee, Act. Sec. of State, to Mr. Hunter, April 12, 1895, 201 MS. Dom. Let. 480.)

David Hofmann was born in Bohemia March 21, 1864. In July, 1883, when nineteen years of age, he emigrated to the United States, where he became a naturalized citizen. Eleven years after his emigration he returned, in May, 1894, to his native country. Two months later, in July, he was ordered by the district authorities to leave the country within eight days "for reasons of public welfare," since it was "contrary to public peace and order that persons who have evaded the military law in this manner should sojourn in this coun

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