You are of course cognizant of the fact that the municipal and
governmental regulations in force in the fortified cities of Europe are
very, and perhaps under the conditions obtaining here, necessarily
strict, and on Mr. Mix’s own showing, in my judgment, he fails to make a
case favorable to his right of action against the Government, but, as I
am informed from other sources, Mr. Mix, to put the matter mildly, was
very imprudent, and he would have little show of recovery in a private
action for damages against the local officers. Therefore, not regarding
this a case in which the claimant had a cause of action upon the showing
made by himself, I have not deemed it necessary to set out for your
consideration the facts as claimed by the municipal officers of Przemysl
further than such claim appears in the note of the ministry of foreign
affairs in the correspondence already submitted.
[Inclosure 1 in No. 50.]
Mr. Mix to Mr.
Tripp.
Paris
,
October 6,
1893
.
Dear Sir: As you will remember, I had
occasion to telegraph you from Przemysl on the 14th of September
regarding my imprisonment there on the charge of being a spy. I also
wrote you as soon as I was liberated, stating that directly I
returned, to Paris I would make claims through the American minister
against the Austrian Government for damages.
I have only just returned, after a business trip to Odessa. I
returned by way of Berlin and have visited the American minister
here, who informs me that the incident having occurred outside of
his territory I must address you with regard to it.
I left Paris on September 7 on my business visit to Odessa, passing
by way of Milan, Venice, and Vienna. I left Vienna on the night of
September 12, having purchased a through ticket of Messrs. Cook
& Co. I took the 10 o’clock train from Vienna. On the way from
Krakan I had occasion once or twice to step out of the train as it
stopped at the stations and photograph some curious costumes of the
country. Arrived at Przemysl I did the same. The train stops at this
point not more than two minutes, and I had barely stepped out of the
car before a detective approached me and demanded what I had and
what I was doing. I tried as best I could to make him understand,
and showed him my photographing apparatus, also my ticket direct
through to Odessa, and on his demand showed him my passport. This
did not seem to satisfy him and he ordered me to get out of the
train and accompany him. This I did with what hand baggage I had in
the car. My overcoat, unfortunately, was in the dining car, and as
soon as I had stepped out of the train it rolled off.
I was conducted into a room in the depot, and the commissaire of
police summoned. I was here searched from head to foot and all the
papers in my baggage examined. As I speak neither Polish nor German
I could not make myself understood until a gentleman was summoned
who spoke French. I presented the case very plainly to him, and told
him what I was doing, where I came from, and where I was going, and
all the incidents of my voyage, and gave them the most detailed
explanation of all papers and documents which I had about me.
[Page 24]
My passport was in perfect order, and had been visaed by the Russian
consul in Paris before my departure, this formality being necessary
in order to cross the Russian frontier. It may be that the signature
of the Russian consul caused them to suspect me of being a Russian
spy.
My explanation in the depot was not apparently sufficient, and I was
conducted to the commissaire of police. There my papers were again
searched by two or three individuals, and I gave every explanation
they demanded.
They called in a lawyer with whom I could converse, and he made out a
statement in Polish as to who I was, where I came from, where I was
going, and the object of my visit.
Up to this time everything looked as though I had given perfectly
satisfactory explanations, and that I would be liberated before
night. I had been arrested at noon. However, I would add that the
commissaire of police was about half intoxicated, and I had occasion
when I got out of prison to talk with the lawyer who had been
present during my first examination, and he corroborated my opinion
in this respect.
The commissaire, after the departure of the lawyer who had drawn up
my statement, began a sort of cross-examination in German, of which
I practically understood nothing, and he denied permission to an
employé of the office, who understood some French, to make any
interpretation for me. I comprehended sufficient German, however, to
understand that the commissaire believed that I understood German
perfectly, and was only pretending that I did not understand.
They then began sealing up my papers, which naturally told me that I
would be detained some little time longer. I immediately began
asking permission to telegraph to my company in Paris, and also to
you. All such permission was denied, even after my repeated
demands.
I was sent to prison about 5 o’clock, and locked up with a lot of
criminals, after having had everything which I had in my pockets
taken from me. I was not allowed to take anything, neither my
traveling robe.
I was locked up until 10 o’clock the next morning, when I was taken
before the jailer and obliged to pay for a dinner which I had eaten
in the dining car and had not yet paid for at the moment of my
arrest. Having again an opportunity for asking for permission to
telegraph, I repeated my request, but was greeted with a refusal. I
then asked for a lawyer, whom I succeeded in obtaining. The lawyer
happened to be the one who had been present at my first examination
at the commissaire of police, and I got him to procure permission
from the commissaire of police and procureur-general to telegraph
both to you and to my company at Paris. I was not, however, even
permitted to see the telegrams which were sent, but was obliged to
pay for them.
It was not until I had been locked up forty-eight hours that a
telegram was received by the procureur general from the minister of
the interior at Vienna, ordering them to set me free, that I was
given my liberty. No excuse or apology whatever was made by any
official.
The delay caused by my imprisonment, which lasted two days, and the
loss of time caused by not being able to make the train connection
to Odessa, caused me to lose, in all, just three days of time. This
caused me a very great prejudice, as I had a very important affair
on hand in Odessa.
The same delay also caused a very great prejudice both to my company
in Paris and Berlin.
My camera had been taken away on the first day of my imprisonment and
given to a photographer for developing. The developed plates were
present during one of my examinations before the procurer, and there
was nothing about them whatever which could excite the least
suspicion that I was taking photographs of fortifications or acting
as a spy. I may add here that the camera was broken in the hands of
the photographer.
After my release it was impossible for me to find any trace of my
overcoat, although I made inquiries at all the stations along the
road to the Russian frontier, and also wrote to the railway company
on the matter.
All in all, I consider my net losses, covering the overcoat, camera,
telegrams, and lawyer, amount to 500 francs. Over and above this, I
naturally desire to make very heavy claims for damages, as the news
of my imprisonment was telegraphed all over the world and appeared
in all American as well as European papers, and caused me
considerable damage in that respect.
I therefore ask you to make claims against the Austrian Government
for the sum of 100,000 francs, and I would request you to inform me
what steps I should take to impress my claim.
This matter has been taken up by the newspapers, and since my return
to Paris I have been approached by several, asking for details of
the matter. I replied that I did not care to make any public
statement until I had communicated with you and had made my claim
for damages.
Yours, etc.,
[Inclosure 2 in No. 50.]
Mr. Tripp to
Mr. Mix.
United States Legation,
Vienna
,
October 11,
1893
.
Dear Sir: I have your favor of October 6 in
reference to your imprisonment in Galicia, and your claim for
damages for your loss of property, detention, etc.
In reply I am obliged to say that I do not feel justified in making a
claim on the part of the United States against the Austrian
Government for damages in this case, although as I can see you have
suffered great wrong and insult as well as pecuniary loss; yet the
fault seems to have been rather that of the blundering officials
than of the Government itself; and the principal officers of the
Austro-Hungarian Government, who must be regarded as its
representatives, rather than the offending local officers, as soon
as their attention was called to the matter, acted very promptly in
ordering your discharge. A government can only be held responsible
when it sanctions the action of its officials, done in violation of
law; it ought not to be held responsible for unauthorized acts which
it promptly disowns upon being cognizant thereof; the responsibility
in such case falls upon the offending official. Your remedy lies in
a private action against the municipal officers who committed the
outrage upon you willfully or through overzeal in the performance of
a supposed duty.
I have examined your case with some care and I am rather disposed to
commend, than to criticise, the Government of Austria-Hungary for
its action in the matter, and I do not feel that it is a case in
which our Government would be justified in bringing the matter to
the attention of the Austro-Hungarian Government by way of complaint
for the acts of its subordinate officers, which it promptly
condemned.
There is another feature in the case that should not be overlooked in
considering your claim for damages even against the local officers.
Przemysl is a fortified town, and it is a high offense in that
province to take any pictures of its fortifications or immediate
surroundings. You, a stranger, were found taking pictures, and while
in fact you were innocent of any intentional wrong, it might be
found that there were reasonable grounds for suspicion in the mind
of a very vigilant officer (ambitious of notice) that your conduct
was not prompted wholly by desire for pleasure and amusement.
Should the facts develop a sufficient apparent ground for action on
the part of a zealous officer, having no apparent reason for
committing a wilful wrong, it would be a sufficient defense, even in
a private action, especially in a court presumably, as such must be,
not inclined to be unfriendly to the Government which created it,
and toward the officers acting in its behalf.
This, however, is but a suggestion on my own part for consideration
of yourself and the counsel you may employ, for my official duty
ends with the determination that the case is not one in which the
Government I represent ought itself to intervene.
It is pleasant to note the kind expression of thanks on the part both
of yourself and employers for my action in your behalf, and I trust
I may be permitted to remain,
Yours, etc.,
