Mr. Tripp to Mr. Olney .
Vienna , July 26, 1895 . (Received August 9.)
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.,