try." The governor of the province, in dismissing an appeal from the order of expulsion, declared that the reasons given for the order were justifiable. Mr. Tripp, minister of the United States at Vienna, in reporting the case, said: "My own convictions are very strong in this matter, that every nation has the right to bar its doors against obnoxious citizens of other nations for reasons which to itself may seem sufficient, without cause of complaint on the part of the nation whose citizen is thus debarred. We have assumed the right in case of China and in particular classes of cases in reference to the citizens of other countries. I am disposed to think the reasons that Austria-Hungary gives for closing her doors to former citizens who have openly evaded her military laws a good one. It is an undeniable fact that hundreds of young Austro-Hungarian citizens approaching the age of military service emigrate to America, and, remaining there just long enough to acquire citizenship, return again to their native country to permanently reside, resuming their former citizenship and allegiance to the Government in everything but its military laws. Many of these returned pseudo-Americans are loud in their defiance of the military power, and openly and shamelessly boast of their smartness in being able to enjoy all the privileges of a government without being obliged to share its burdens or responsibilities. The example of these ‘Americans' before the young men of the country, to say nothing of their teachings and boastful assertions of immunity, is pernicious and against public order and ready obedience on the part of the citizens to the necessarily harsh enforcement of the military laws of this Government. I have seen very much of these 'American citizens during the past year. Many of them are married and in business here; they have no intention of returning to America; they own no property, and they pay no taxes in America; they have not even the ties of family or friendship to bind them to their adopted country; their citizenship is a fraud, a fraud against their adopted as well as against their native country. In time of peace they burden us with their claims of loyalty; in time of war they deny their assumed allegiance and claim, by abandonment, a restoration of their civil rights to which they are entitled by birth." Mr. Tripp, min. to Austria-Hungary, to Mr. Gresham, Sec. of State, Aug. 13, 1894, For. Rel. 1894, 30–32. The view taken by the Austrian Government of the general question, as expressed in a note written to the United States legation in an analogous case, was as follows: The expulsion took place in conformity with article 2 of the law of July 27, 1871, because his stay in Austria was considered inconsistent with public order. NATIONAL:TY. [$ 399. “Not coming under the provisions of 1, 2 and 3 of Article II. of the treaty of September 29, 1870, he was not, on his return to Austria, held to perform military service. The treaty has therefore not been violated, inasmuch as his United States citizenship was recognized. “The above-mentioned treaty, however, does not deprive the imperial and 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 September 20, 1870. The naturalization took place, therefore, when regarded from an Austrian legal point of view, doubtless in fraudem legis. “The provisions of the Austrian military laws of October 2, 1882, 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 Austro-Hungarian subjects from the same point of view, however justified the measures may be, according to our laws." (For. Rel. 1894, 35.) The decision of the Department of State was as follows: “Hofmann, having come to this country a short time before he arrived at the age for military service in Austria, is, by the terms of the treaty of 1870, exempt, upon his return to that country, from trial and punishment for nonfulfillment of military duty. “There is, however, nothing in the treaty or in the general principles of international law to prevent the Austro-Hungarian Government from expelling Hofmann, upon his return there, under the circumstances of his case, for reasons of public welfare. The expulsion seems to have been made after due judicial examination into the facts, and without any circumstances of harshness or oppression. "I can see no ground for exception or protest against the action of the Austro-Hungarian authorities." 66 Mr. Uhl, Acting Sec. of State, to Mr. Tripp, min, to Austria-Hungary, See, as to the case of Hugo Klamer, For. Rel. 1890, 15; supra, p. 418. Gustav Wolf Louis Fischer was born in Saxony, July 14, 1868. On the death of his father his mother removed to Vienna, where he was naturalized as an Austrian subject, November 17, 1885. In March, 1888, he was notified to appear for military duty, but on examination was pronounced unfit for service. He then went to the United States, where, December 5, 1893, he was naturalized. March 2, 1895, he obtained a passport and returned to Vienna. Early in 1900 he was summoned before a district magistrate and ordered to be banished. From this order he appealed to the governor of Lower Austria. At this point the minister of the United States at Vienna interposed, and asked that the order of expulsion be revoked. The Austrian Government stated that Fischer, at the time of his emigration, was classified as a person “remanded," and was under an obligation to report for a later examination. It was admitted that his naturalization was valid under the treaty of September 20, 1870, but it was maintained that his expulsion was not to be considered as a punishment, but as an administrative measure. It was, said the Austrian Government, a measure inspired by "consideration for public order, and is based on the belief that the latter suffers offense when a person, by assuming foreign citizenship, avoids performance of those duties to his country which are placed upon him as upon all his fellow-citizens, and then, protected by this new citizenship from the punishment otherwise resultant from this avoidance of duty, returns and settles permanently in the midst of his former countrymen, who find themselves in a condition not so favorable as is his. Such an act is not only provocative of discontent in all those who fulfill their obligations to the state, be their fulfillment voluntary or compulsory, but it acts also as a bad example, and, were such proceedings unchecked or of frequent occurrence, would work positive harm to the defensive power of the state. The offensive impression and the corruptive influence of the action under discussion lie in the extreme conditions under which Fischer, who was still pledged to duties to the state in this country, accomplished his naturalization in America, and also in his return here to settle in Austria. It is immaterial whether the intention to return, after avoiding military duty, was already formed in his mind, as it is in a majority of such cases, or whether the intention to return, perhaps originally nonexistent, was formed at a later date." Count Szecsen, ministry of for. aff., to Mr. Harris, Amer. min., June 5, 1900, For. Rel. 1900, 21, 22. Commenting upon this note, the Department of State observed that "the weakness of this position is that it does not rest upon any averment of offensive conduct on Mr. Fischer's part which would justify the individual application in his case of the right of expulsion, but, rather, appears to lay down a general principle whereby the expulsion of every American naturalized Austro-Hungarian, who was under admitted liability to serve at the time of emigration, would be a necessary proceeding under the general policy of the state. Such a sweeping doctrine would to a serious extent neutralize the provisions of our naturalization treaty with Austria-Hungary. That instrument, weighing all the circumstances under which persons of military age might emigrate without fulfillment of their obligations, discriminated between the classes securing immunity by naturalization and those not so securing it. It can not be expected that this Government will acquiesce in a comprehensive enlargement of the nonim mune dass by the ex parte at of the other oatrating party." It was also observed that, so far a- the Austrian answer dealt with the merits of the cae, it omprised two disint proposition-Mr. Fischer's action prior to his naturalization ani his action since. The first, as had been, statel, was covered by stipulations of the treaty, and the second, which imputed to him an intention to settle in Austría, brought his case within article 4 of the treaty, which seemed to import that a naturalized citizen, night ride indefinitely in the country of his origin without incurring any disability and without being obliged to resume his original citizenship. The Department of State further said: "Mr. Fischer, it now appears, has asked that the order of expulsion be postponed until September, and his petition has been granted. This arrangement may be deemed to embrace a voluntary engagement on his part to quit Austro-Hungarian territory by a given date, and he will be expected to abide thereby, . . . the principles upon which this Government rests in contesting the general claim of the Austro-Hungarian Government wise prejudiced by Mr. Fischer's action. . our views upon this point and upon the broader point of expulsion for individual cause clear to the minister of foreign affairs." .. being in no . You should make Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, July 19, See, also, Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, The Government of Austria-Hungary having stated that the treaty of September 20, 1870, contained no provision granting to American citizens the right to remain, and particularly the right to remain indefinitely, in Austria, and that their right to remain was therefore subject to the laws of the country, according to which (particularly Clause V., par. 2, law of July 27, 1871) persons who are not Austrian subjects may be expelled from the entire territory or from part thereof, if their stay, for reasons of danger to public order or security, is objectionable," the United States observed that the question whether naturalized citizens of the United States of Austrian origin might be expelled from Austria, as well as the question when they might be so expelled, would seem to depend upon the particular circumstances of each case; that the United States maintained 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;" that the treaty undoubtedly gave the right of inoffensive return, and that this stipulation was not to be impaired by construction. The Austrian foreign office had alleged as the ground of expulsion in the case under consideration that "the ostentatious manner in which he [John 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." As Richter was only 14 years of age when brought to the United States and would not have been subject to military duty till he reached the age of 19, it might, said the Department of State, be questioned whether he left for the purpose of evading such duty. In view of the fact, however, that Richter had been informed by the Austrian authorities that he might return to the place from which he was expelled, and as he had made no further complaint, it was not deemed desirable to take up the case with the Austrian Government. Mr. Hay, Sec. of State, to Mr. Herdliska, chargé at Vienna, July 9, For paragraphs 1 and 2 of the Austrian law of July 27, 1871, regulating 6. DENMARK; ECUADOR. $ 400. Treaties of naturalization were concluded by the United States with Ecuador, May 6, 1872, and Denmark, July 20, 1872. VI. NATURALIZATION NOT RETROACTIVE. 1. GENERAL PRINCIPLES. $401. The decree of naturalization does not operate retroactively. Ex parte Kyle, 67 Fed. Rep. 306; State v. Boyd, (Neb.) 48 N. W., 739; A person who was born a citizen of Mexico, and lived on the east side of the Rio Grande, in New Mexico, at the time of the treaty of Guadalupe-Hidalgo, can not maintain an action for an Indian |