Mr. Adee to Air. Grant.

No. 21.]

Sir: I have to inclose herewith a copy of a complaint transmitted to this Department by the American consul at St. Galle on the 24th ultimo from Mr. Frank Xavier Fisher, a naturalized citizen of the United States, in relation to his arrest and imprisonment at Wolfurt, Austria.

He states that he arrived at that place on the 19th of August last. On the afternoon of the 21st of the same month he was arrested.

The officer who made the arrest asked him why he had not presented himself for the performance of military duty. Mr. Fisher replied that he was a citizen of the United States, and bore as such a passport issued by this Department. This passport he offered for examination, but such examination was declined, and he was thrown into prison until the following day, when his papers were examined and he was discharged.

Mr. Fisher alleges that at the time of his emigration he had not been conscripted, and this being so, he was not subject under the treaty of [Page 26] naturalization between the United States and Austria-Hungary of September 20, 1870, to any prosecution for non-fulfillment of military duty. There would thus appear to have been no ground for the action taken against him.

You are instructed to bring the case to the attention of the Austro-Hungarian Government and ask that it be investigated. The proceedings of the authorities at Wolfurt seem to have been hasty and unwarrantable, and to have been taken without any examination into the facts of the case. Without any other ground than the mere fact that Mr. Fisher had been an Austrian subject it was not permissible to assume that because he had not performed military service he had violated the military laws. Before arresting him upon such au assumption care should have been taken to ascertain whether the suspicion had any foundation, and his imprisonment under the circumstances appears to have been unwarrantable.

I am, etc.,

Alvey A. Adee.
[Inclosure 1 in No. 21.]

Mr. Robertson to Mr. Wharton.

No. 51.]

Sir: I have the honor to herewith inclose, at his request, an affidavit of Mr. Frank Xavier Fisher, setting forth the circumstances of his arrest and imprisonment by the authorities at Wolfurt, district of Bregenz, Austria, and which will explain itself. Mr. Fisher returns to America within probably a month, and seems anxious to hear from the Department at his address as given at the foot of his statement.

I am, etc.,

W. Henry Robertson.
[Inclosure 2 in No. 21.]

I, Frank Xavier Fisher, living at San Francisco, and now temporarily in Europe, being duly sworn, do hereby depose as follows:

I was born at Wolfurt, district of Bregenz, Austria, on the 9th day of August, 1849. I resided at Wolfurt until nineteen years of age, when, on the 9th day of November, 1868, I left for the United States of America, of which I subsequently became a naturalized citizen, in proof of which fact I am now the holder of passport No. 8339, issued on the 26th day of July, 1889, and signed by James G. Blaine, now Secretary of State of the United States.

I left the United States on the 3d of August, 1889, per steamer Gellert, sailing from New York for Hamburg, and arrived at Wolfurt, Austria, on the 19th day of August, instant, where, on the afternoon of the 21st, I was arrested by the municipal gens d’arme and thrown into prison. I was asked by said officer why I had not presented myself for military duty at the time fixed by my conscription, which took place after my emigration from Austria, and while I was in the United States, and a knowledge of which conscription I did not have until five or six years after it was made. I replied that I was a citizen of the United States, bearing a formal passport, which I offered to show, but which the authorities declined to examine. Without further ceremony I was carried off to prison, and there kept, under circumstances of great hardship and discomfort, until the following morning, when I was brought before the authorities and my papers examined. I was then released with the permission to either leave or remain on condition of good behavior.

I do now further depose that I regard this treatment of me by the authorities of Austria as wholly unwarrantable, unjust, and unusually harsh, and as a violation of treaty obligations towards the United States and of the principles of international harmony and usage. Having emigrated from Austria before attaining the age at which I was liable for military duty, I deny my liability thereto upon my voluntary return to the country of my birth.

[Page 27]

I did not emigrate therefrom after having been drafted at the time of conscription, and had not become enrolled as a recruit for service in the standing army, nor did I emigrate while standing in service under the flag, or during a leave of absence for a limited time, nor under a leave of absence for an unlimited time; or belonging to the reserve or to the militia, did I emigrate after having received a call into service, or after a public proclamation requiring my appearance, or after a war had broken out. I therefore hold, in accordance with existing treaties between the United States and Austria, that having transgressed none of the legal provisions on military duty referred to in Article II, clauses 1, 2, 3, of the convention of 1870, concerning naturalization, and ratified by the Governments of the United States and Austria-Hungary on July 14, 1871, and proclaimed August 1, 1871, that on my return to the latter country I could not be held subsequently to military service nor remain liable to trial and punishment for the non-fulfillment of my military duty.

In view of this arbitrary and severe treatment of myself by the authorities of Bregenz, resulting in the most serious embarrassment, discomfort, and delay to me, I would most earnestly and respectfully hereby petition she Government of the United States to effect through the proper channels a thorough investigation of the facts connected with so grave an outrage against the rights and person of myself, an American citizen, and to demand from the Government of Austria-Hungary a guaranty against the repetition of such acts in future, and a full and practical reparation for the grievous injury committed in my individual case. All of which I do honestly and truly depose under oath and respectfully submit.

Frank Xavier Fisher.

In care of P. N. Kuss,
409 Thirteenth street, Oakland, California.

Sworn to before me this 24th day of August, 1889, at the consulate of the United States at St. Galle, Switzerland.

[l. s.]
W. Henry Robertson,
Consul.