Mr. Tripp to Mr. Olney .
Vienna , June 30, 1895 . (Received July 18.)
Sir: I have the honor to submit for your consideration the facts in the case of Hugo Kovacsy, and my action in the premises as follows: Mr. Hugo Kovacsy, a native of Hungary, emigrated with his wife to the United States in the year 1871, where, having resided continuously until 1876, a period of five years, he was naturalized and became a citizen of the United States. In the year 1874, about two years prior to such naturalization, Edward Kovacsy, a son of the said Hugo Kovacsy and wife, was born in New York City. In 1878 Hugo Kovacsy, his wife, and infant son returned to Hungary, to their native town, where they have since continually resided. The father claims still to be an American citizen and to have never renounced in any way his allegiance to his adopted country. He has, however, never returned, nor has his wife or son ever returned, even for a visit to the United States, since their departure in 1878, but the father has been engaged in business here and has reared and educated the son here in Hungary, and declares that he has never had any intention of again returning to the United States, except perhaps for a visit, since he left it in 1878.
The son Edward is now 21 years of age and has been summoned to appear for examination as a soldier in the Hungarian army, and the father appeals to this legation for its intervention upon the ground that the son is an American citizen. The son declares that he never intends to go to America to reside, but expects and intends to remain in Hungary, [Page 21] so far as he knows, during his natural life, but claims to be an American citizen by reason of his birth.
Upon these facts I stated to the father and son that the son, by reason of the peculiar circumstances of his birth, belonged to that class of individuals who were privileged to choose for themselves whether on coming of age they would become a citizen of the country of their own and father’s domicile or of the country in which they were born; that if he now elected to go to America, in good faith to take upon himself the duties of citizenship there, I would issue to him a passport and intervene in his behalf by application to the Government of Austria-Hungary to release its claim upon him as a subject of Hungary. He expressed a willingness to go to America if he might be again permitted to immediately return to reside as before permanently in Hungary.
I explained to him fully why, as in his case, the power of the Government of the United States could not be invoked to protect a citizen of Austria-Hungary against the execution of its own laws. He was now at that period of his life when he must elect whether he would be a Hungarian or an American. If he elected to be a Hungarian, the United States would not intervene to prevent him from performing the duties of a Hungarian citizen, among which was his duty to serve in its armies as required by its laws. If he elected to be a citizen of the United States, good faith required that he should place himself in a position to be ready to perform the duties his native country might require of him, which he could not do as a resident abroad; that the duties of citizens and Governments toward each other were reciprocal; that the citizen who claimed from his Government the right of protection must himself be ready to perform toward his Government the duties of a citizen when required; that while he might still claim to be an American citizen, I could accept nothing less in his case than an actual renouncement of the domicile so long maintained in Hungary and a return to the United States in good faith to make it his permanent home. This he declined to do, and I have refused to intervene, subject to your approval.
It may not be out of place for me to briefly state my view of the general principles of international law which seem to make the case easy of determination.
Under the Austro Hungarian law a citizen born abroad of Austro-Hungarian parentage is and continues to be, unless he renounces his allegiance, an Austro-Hungarian subject; which is the rule obtaining in most European States, and although there is some conflict in the decisions, I do not understand that it is now seriously claimed on the part of our Government that the fourteenth amendment, or section 1992 of the Revised Statutes of the United States, extends to a case of a child born in America of foreign parentage and having only a temporary domicile therein. The words of the statute, “subject to the jurisdiction thereof,” and of the fourteenth amendment, “not subject to the jurisdiction of the United States,” which are used as qualifying the clause making all persons born or naturalized in the United States citizens, it seems to me, clearly except children of foreigners temporarily residing in the country; such children are subject to the jurisdiction of the country of which their parents are citizens, and not to the jurisdiction of the United States. The son therefore became a citizen of the United States, not by the accident of birth, but by the naturalization of his father, two years later, and this citizenship he could abandon or elect to maintain on arriving at age, irrespective of whether his father did or did not in the meantime abandon his own right of American citizenship.
[Page 22]On arriving at the age of discretion, however, the act of election should be something more tangible than the mere statement of the candidate that he elects to be an American citizen, especially in a country where, as in this, there is every inducement to be in name an American citizen, and in fact an Austrian subject; and in such cases I have deemed it prudent to require that the assertion shall be accompanied by some act of good faith, such as placing himself within the jurisdiction of the country of which he claims protection, or some other act of sacrifice on his part which may satisfy me that his purpose is not one of evasion, but that in good faith he is and intends to be a citizen of the United States.
I shall await your approval or disapproval of my action before taking any further steps in the premises.
I have, etc.,