Mr. Tripp to Mr.
Olney.
Legation of the United States,
Vienna, July 26,
1895. (Received August 9.)
No. 151.]
Sir: I have the honor to submit for your
consideration the correspondence between this legation and the Imperial
and Royal ministry of foreign affairs of Austria-Hungary in reference to
the case of Solomon Czosnek, as shown by notes and translations herewith
inclosed, the facts of which are as follows:
Solomon Czosnek was born at Chrzanow, in the province of Galicia, of
Austrian parents, on the 1st day of April, 1873. In 1878 his father
emigrated to America, and having established a permanent home in the
United States sent for his family, consisting of a wife, the
complainant, Solomon Czosnek, and a younger brother. Subsequently, in
1888, the father was duly naturalized a citizen of the United States,
his son Solomon being then a minor of the age of 16 years. Young Solomon
Czosnek continued to reside in the United States until January, 1895,
when, desiring to visit Austria-Hungary upon some matters of business
connected with his father’s affairs, he applied to and obtained from the
Department of State at Washington a passport in the usual form, the same
being dated January 5, 1895, and numbered 7178.
Arriving at Chrzanow about the 1st of March, 1895, he was summoned by the
local military authorities to appear for military duty. To this summons
he replied that he was an American citizen and not subject to military
duty in Austria-Hungary, and exhibited his passport. Subsequently he was
arrested by the criminal authorities upon the complaint of the district
attorney at Krakau, charging him with a violation of the military law of
Austria-Hungary by evading military service when properly summoned. Upon
this complaint, which in no way attacks or seeks to impeach the passport
of Czosnek, he was bound over to the district court to answer the
criminal charge therein contained. Czosnek appealed to this legation and
I intervened in his behalf, which resulted in his discharge, as
disclosed by the correspondence itself.
The case becomes valuable as a precedent in this, that, while in the John
Benich case (see my dispatch No. 931) the Government of Austria-Hungary admitted the
position taken by the Department of State through this legation, viz,
that the passport of a friendly nation was prima facie evidence of
citizenship and must be respected as such by local executive and
administrative officers, the right has several times been suggested that
judicial officers might with impunity act in disregard of the same. I
therefore took occasion in this case to deny the right of the district
attorney, whose complaint is herein set out in full, to hold this man to
answer for failure to perform military duty in Austria-Hungary, at the
same time ignoring his right as an American citizen and treating with
contempt his passport from the State Department.
Without trenching upon the debatable ground of how far the courts of a
friendly nation may go in reviewing the decisions of another friendly
nation in reference to the status of a citizen claimed by either [Page 14] Government, I contented myself
with politely but firmly contending that in a case where no charges of
fraud were made against the person presenting the passport, in its
procurement or as to his own identity, etc., the judicial officers were
as much bound as executive or administrative officers to respect the
paper when fair upon its face, and that it must be taken by them as
prima facie evidence of the facts therein recited; and it gives me great
pleasure to say that this view is shared by the Imperial and Royal
ministry of foreign affairs for Austria-Hungary, as will be seen by its
final note, a translated copy of which is herewith submitted, and by
which this legation is informed that the district attorney at Krakau was
not only instructed to immediately dismiss his complaint, but that in
future the judicial authorities of Galicia were instructed that they
must be governed in similar cases by the treaty and the views expressed
in my notes to the imperial and royal ministry of foreign affairs.
It gives me great pleasure to add that since the determination of the
Benich case, to which I have already referred, the annoyances of our
citizens bearing American passports have been much less frequent, and it
is to be hoped that the determination of this case and the instructions
that have in accordance therewith been issued to the local authorities
of Galicia will perhaps entirely end all further annoyance and hindrance
to American travel in the provinces of Austria-Hungary. The frequent
complaints in the past, it gives me pleasure to say, have not arisen
from any want of courtesy or consideration on the part of any officials
of the foreign office, or of the higher officers of State, but from
overzeal and want of knowledge on the part of provincial officers or
local authorities not under the control or jurisdiction of the ministry
of foreign affairs.
Trusting that the determination of this matter may meet with your favor
and approval,
I have, etc.,
[Inclosure 1 in No.
151.]
Mr. Tripp to
Count Goluchowsky.
United States Legation,
Vienna, May 23,
1895.
Your Excellency: One Solomon Czosnek, a
naturalized citizen of the United States, makes complaint to this
legation that he has been arrested at Chrzanow, Galicia, and held to
answer the criminal charge of illegally abstaining from fulfilling
military duty. The facts, as presented to this legation, are as
follows:
Solomon Czosnek was born in Chrzanow, Galicia, on April 1, 1872, of
Austrian parents. In 1878 the father emigrated to America, and
having established a home in the United States sent for his family,
consisting of a wife and two sons, the complainant, Solomon Czosnek,
and a younger brother; that subsequently in 1888, the father, having
made previous application, was duly naturalized a citizen of the
United States, this complainant being at that time 16 years of age;
that he has since said naturalization and since his arrival in the
United States continuously resided therein until January, 1895,
when, desiring to visit Austria upon matters of business, he applied
to the Department of State at Washington, D. C, and was granted a
passport in the usual form, the same being numbered 7178 and bearing
date January 5, 1895. [Page 15]
Arriving at Chrzanow, he was, about the 1st of March, 1895, summoned
to appear for military duty, to which summons he replied by
submitting his passport and claim of American citizenship.
Mr. Czosnek was, on the 1st of May, 1895, subsequently arrested and
held to answer the criminal charge of illegally abstaining from
fulfilling military duty as above stated. To this charge he made the
same answer and again exhibited his passport, which was taken from
him by the local authorities, and has since been retained by them.
Mr. Czosnek desires to visit Russia and other parts of Europe before
returning to America, but is still detained at Chrzanow under
surveillance and his passport is still withheld from him.
If the facts are as stated in the complaint made to this legation, a
great wrong has been done Mr. Czosnek, one which your excellency, it
is confidently expected, will immediately take measures to
correct.
Under the naturalization laws of the United States, when the father
becomes a naturalized citizen of that Government his wife and minor
children become, ipso facto, citizens of the United States, and the
citizenship of this son, under the facts herein stated, it will be
at once admitted, comes clearly within the terms of the treaty of
1870, which provides that “citizens of the Austro-Hungarian Monarchy
who have resided in the United States of America uninterruptedly at
least five years and during such residence have become naturalized
citizens of the United States shall be held by the Government of
Austria and Hungary to be American citizens and shall be treated as
such.”
This is but one of several instances in which the local, civil, and
military authorities of Austria-Hungary have deemed it their right
to pass upon the validity or authenticity of American passports,
whereby our citizens have been long hindered and delayed, and in
some cases have been arrested and put to great cost and
inconvenience. In the case of John Benich (see note of this legation
to the foreign office, No. 93, under date of August 23, 1894), I
took occasion to express fully and at length the views entertained
by my Government as to the right of the local authorities of one
government to review the decision of another friendly government
under the general principles of international law, and in which view
Count Welsersheimb, speaking for his excellency the minister of
foreign affairs, in his reply (see note from foreign office of date
August 18, 1894, No. 28523–7), approving the views therein
expressed, took occasion to say:
In regard to that part of the esteemed letter of September
26, 1893, which treats of the necessity that papers issued
by the competent authorities of one country should be
respected and recognized by the authorities of a third
state, as long as these documents do not bear unmistakable
proofs of having been counterfeited or otherwise obtained by
fraud, the provincial government of
Croatia-Slavonia-Dalmatia begs leave to say that it fully
shares the views expressed in that part of the note, and
that the governor has not failed to instruct all his
subordinate officers to act in the future in due
conformity.
Again assuring your excellency, as in my note in that case I took
occasion to do, that should any case arise in which the passport of
an American citizen is drawn in question as to the identity of its
bearer, or as to fraud in the procurement of the passport itself,
this legation will hold itself in readiness to aid in causing the
allegations and complaints to be immediately investigated by the
authority from which the document issued, to the end, in all cases
when the charges are sustained, that the document may be canceled
and the bearer of the same be convicted and punished, my Government
must insist, where its passport, bearing upon its face an apparent
validity, is presented to the local authorities of your Government,
that it must be respected as such [Page 16] without subjecting its bearer to months of delay
and great expense in proving and determining the facts of which the
paper is prima facie evidence and, as to the local authorities to
whom it is presented, the best evidence.
Being assured by our previous correspondence that no difference of
opinion can possibly exist between the two Governments as to the
legal questions involved, I trust it is not asking too much to
request that such instructions may be issued to the different
provinces of Austria-Hungary as may in the future save your
excellency the annoyance, and this legation the trouble, of making
and passing upon complaints of American citizens deprived of their
rights by provincial authorities acting in violation of the rules of
international law governing the intercourse of friendly powers.
And at the same time permit me, etc.,
[Inclosure 2 in No.
151.—Translation.]
Mr. Cziraky to
Mr. Tripp.
Sir: The ministry of foreign affairs has
not neglected to address itself to the minister of public defense in
regard to the nonfulfillment of the military duty on the part of the
alleged citizen of the United States, Solomon Czosnek, as requested
in the esteemed note of May 23 last, No. 96, in order that the case
in question be fully investigated and further steps be subsequently
taken.
The minister of public defense now reports that the investigations
which have been made furnish the following result:
Solomon Czosnek, born in Chrzanow in 1872, was called to report for
military duty, by ticket No. 584, in the year 1893. He did not
answer this summons, however, neither in 1893 nor in 1894, for the
reason that he had gone to America when he was 16 years old in
company with his mother, without having obtained a permit to
emigrate. He was, therefore, carried on the descriptive rolls
according to paragraph 109 of the military law, and marked as being
absent.
On his return to his native town in 1894, he was summoned by the
authorities of his community to appear before the military board of
examination, and in February, 1895, he reported to the district
captain at Chrzanow, protesting against his enrollment on the ground
of having become a citizen of the United States by the
naturalization of his father in 1888, when he was yet a minor. To
prove his assertion, he produced the passport which had been issued
to him.
His statements were written down by the district captain at Chrzanow,
and afterwards transmitted to the state attorney at Krakau for
further action.
In the course of proceeding against Solomon Czosnek the district
court at Chrzanow had taken the passport away from the accused, and
had forwarded the same to the United States legation at Vienna, with
the request that its genuineness be verified, asking at the same
time whether the owner of the document in question was really an
American citizen.
A reply has so far, as the provincial governor at Lemberg under date
of June 8 reports, not yet been received, and the provincial
government of Galicia is of opinion that Solomon Czosnek’s passport
is still [Page 17] with the United
States legation. The accused, it must here be said, is not deprived
of his liberty, and is allowed to move about freely.
The case, as it appears from the foregoing, being still pending, the
ministry of public defense is unable to act before judgment has been
passed, the more so as it must first be ascertained whether Solomon
Czosnek is the legitimate son of the father who emigrated to America
and whether he received his citizenship with the latter according to
law.
While the ministry of foreign affairs reserves to itself the
privilege of giving further information to the honorable envoy of
the United States as soon as received, the undersigned avails,
etc.,
Cziraky,
For
the Minister of Foreign Affairs.
[Inclosure 3 in No.
151.]
Mr. Tripp to
Count Goluchowsky.
United States Legation,
Vienna, June 27,
1895.
Your Excellency: Referring to the note from
this legation, No. 96, of May 23, 1895, in reference to the case of
Solomon Czosnek, I have the honor to further say that I have this
day received from Mr. Czosnek another communication containing copy
of an “Anklage-Aki” served upon him, a duplicate of which is
herewith inclosed for the consideration of your excellency.
If the reasons given by the district attorney for holding this man to
answer before the courts to a criminal charge are the real and only
ones against him, I am sure your excellency will agree with me that
it is my duty to insist upon prompt and immediate discharge. The
district attorney says:
In view, however, that the accused, although he emigrated
before he was liable to military duty, received no permit
from the minister of defense (par. 64 of the military law),
or at least can not produce one, it can not be assumed that
be is exempt from military duty even if he should be
provided with a United States passport.
In other words, a United States passport is not prima facie evidence
that a man is an American citizen, and as such exempt from military
duty. The language used admits of no other meaning.
No charge is brought against this man that his passport has been
obtained by fraud, that he is not the identical person therein
named, but he is arrested upon the ground that he was born a citizen
of Austria-Hungary and has failed to report for military duty during
the three years 1893, 1894, 1895, since he has become of age, and
this in spite of his passport as an American citizen, which he
presents and the authenticity of which stands unchallenged and
undenied. Your excellency will agree with me that no principle of
international law permits the passports of a friendly nation to be
thus ignored or even treated with contempt.
Without desiring to enter upon the field of discussion as to how far
or under what circumstances a friendly nation is permitted to attack
the passports of the citizens of another friendly nation, I content
myself with denying the position taken by the district attorney in
this case and the reasons given by him for holding this man to
answer a criminal charge and for assuming that he may do so
notwithstanding the passport, and without attempt at impeaching the
same. As Mr. Czosnek [Page 18] has
already been long detained in Chrzanow at great expense, and the
reasons given by the local authorities are such as can not be
admitted in justification of his further detention, I am led to
confidently expect that your excellency will immediately take such
steps in the premises as will make complaint as to further action on
the part of the local authorities in Chrzanow unnecessary by my
Government.
I avail, etc.,
[Subinclosure.—Translation.]
charges.
The state attorney at Krakau charges Solomon Czosnek, of Chrzanow, 23
years old, single, commercial correspondent, to have avoided
rendering military duty, and to have been outside of the limits of
the Austro-Hungarian Empire during 1893 and 1894, at a time when he
should have reported for service, by which act he violated the
provisions of paragraph 45 of the law of April 11, 1889, N–41, and
it is ordered that he be tried before the provincial court at
Krakau, where he will be summoned, and that during the trial the
documents issued by the district captain at Chrzanow on April 5,
1895, and May 22, as well as those of the chief of the community at
Chrzanow of April 18, 1895, and all the testimonials of the accused,
be admitted.
reasons.
It appears that the accused was born in 1872 at Chrzanow, and was
therefore liable to military duty in 1893, 1894, and 1895. He did
not report, however, until in the spring of 1895.
He alleges to have emigrated when 16 years old, to have become a
citizen of the United States, for which reason he did not report for
military duty; nor did he do so until he came to Chrzanow, at the
beginning of 1895, when he was summoned. In view of the fact,
however, that the accused, although he emigrated before he was
liable to military duty, received no permit from the ministry of
public defense (par. 64 of military law), or at least can not
produce one, it can not be assumed that he is exempt from military
duty, even if he be provided with a United States passport, and as
he failed to fulfill his military duties in 1893 and 1894, and was
during that time in America, the charges appear to be well
founded.
Krakau, May 31,
1895.
The State
Attorney.
[Inclosure 4 in No.
151.]
Mr. Tripp to
Count Goluchowsky.
United States Legation,
Vienna, June 29,
1895.
Your Excellency: This legation has the
honor to acknowledge the receipt of the esteemed note of June 27
last in reference to the case of. Solomon Czosnek, and replying
thereto in addition to my note No. 103, of June 27 last, upon the
same subject-matter, I have the honor to say in reference to the
statement that the district court at Chrzanow has forwarded the
passport of Mr. Czosnek to this legation for authentication, that it
has never been received at this legation, and if it has been sent,
as therein stated, it must have been lost or miscarried. If received
by me it would have been examined and promptly returned to the
officer from whom received.
Begging permission to again call the attention of your excellency to
the contents of my note No. 103, of June 27 last, already herein
referred to, and which must have been written subsequently to the
esteemed note to which this is in reply, I take this occasion,
etc.,
[Page 19]
[Inclosure 5 in No.
151.—Translation.]
Mr. Pasetti to
Mr. Tripp.
Sir: The ministry of foreign affairs had
the honor of receiving the esteemed notes of June 27 (No. 103) and
of June 29 (No. 104) in which the honorable envoy of the United
States was pleased to refer to the case of Solomon Czosnek, a
naturalized citizen of the United States, arrested at Chrzanow for
nonfulfillment of his military duty, denying the position taken by
the district attorney at Krakau against the above-named Solomon
Czosnek for the reason of having violated the provisions of
paragraph 45 of the military law.
The ministry of justice, to whom the matter was referred by the
ministry of foreign affairs, now reports that it has not delayed to
instruct the State attorney at Krakau to submit the case to a full
investigation and to make the necessary depositions with all
possible haste.
From the report, which was accordingly made by the State attorney at
Krakau, under date of July 10, to the ministry of justice, it
appears that the State attorney, after having convinced himself of
the lawful naturalization of Solomon Czosnek in the United States,
and of the unquestionable genuineness of the passport produced by
Czosnek, and his identity, has instructed the district attorney at
Krakau to withdraw the charges brought against Czosnek under date of
May 31, and to cause the passport, which was among the papers taken
from him at the time, to be returned to Solomon Czosnek.
The State attorney at Krakau has, moreover, informed the district
attorney that the proceedings instituted by the latter in the
premises were not in conformity with the existing regulations, and
has at the same time instructed the authorities under his
jurisdiction to act in future in strict compliance with the
provisions of the treaty of September 20, 1870, and with the views
expressed by the honorable envoy of the United States regarding the
prima facie evidence of foreign and American passports and documents
proving the identity of persons.
While the undersigned has the honor to inform the honorable envoy of
the United States of this decision, he avails, etc.,
Passetti,
For the Minister of Foreign Affairs.