treaty of September 20, 1870, to become citizens of the United States, solely for the purpose of evading the military duties which the government of their native land calls upon them to perform, and that these alleged American citizens, caring nothing for their adopted country, have returned immediately to their native land, thereby cheating their adopted country as well as the land of their birth, where they bring into disrepute the good name of American citizenship and make it more difficult for the United States Government to extend that watchful care and protection to its citizens abroad which all good citizens have a right to expect from their country. The authorities of the Government at Washington have authorized me to inform the Imperial and Royal Government of Austria-Hungary (I have already conveyed this information to the chiefs of section of the imperial and royal ministry of foreign affairs) of their readiness to take into consideration any amendment of the treaty of September 20, 1870, which the Imperial and Royal Government might wish to propose. Inasmuch as the people referred to are undesirable as citizens of the United States, I have no doubt but that any reasonable proposal of amendment of the treaty, which does not disallow the right of expatriation, but which would lead to obliterate from the class who emigrate to the United States those subjects of Austria-Hungary whose only purpose it is to defraud both countries, would receive favorable consideration from the United States Government. But until the treaty is legally changed the Government at Washington will abide by the provisions of that treaty as they stand and will expect the Imperial and Royal Government of Austria-Hungary to do likewise. Taking all the facts in this case of Leon Spitzer into consideration, it seems to be my duty, as the representative of the United States, a great power now upon friendly terms with Austria-Hungary, to protest decidedly and firmly against the intended action of the Statthalterei of Lower Austria in publishing a decree of expulsion of an American citizen from all the countries represented in the Reichsrath, which expulsion is in violation of the solemn stipulations of a treaty under which he should be protected. It may be proper for me to state here in connection with this case that Mr. Spitzer called at this legation some weeks ago, when he said that he was about to return to his home in America; he also expressed the hope that the Staathalterei would quash the decree of his expulsion, as its publication would prevent his visiting again in future his parents, who are now growing old. If Mr. Spitzer departed at the time he seemed to intend to leave, he is now in the United States. The undersigned avails, etc., FREDERICK D. GRANT. [Inclosure 5 in No. 284-Translation.] Count Welserscheimb to Mr. Grant. MINISTRY OF FOREIGN AFFAIRS, SIR: In the esteemed note of the 14th instant, No. 130, the honorable envoy of the United States was pleased to revert once more to the expulsion of Leon Spitzer, a naturalized citizen of the United States, from the countries represented in the Reichsrath, and to express the view, in the arguments brought forth, that the expulsion of Spitzer was not only in violation of the law of July 27, 1871, No. 88, on which the right of the authorities is based, but also contrary to the provisions of Article II of the treaty of September 20, 1870. It is in this connection that the ministry of foreign affairs wishes to call the attention of the honorable envoy of the United States to the following observations: As for the assertion that Spitzer's expulsion was in violation of the law of July 27, 1871, as Spitzer was not one of the persons enumerated in the list given in paragraph 1 of that law, who were liable to such proceedings, it will suffice to remark that Spitzer's expulsion was not based upon paragraph 1 of the law of July 27, 1871, but upon paragraph 2, line 5, of that law, as the minister of foreign affairs had the honor of observing. Paragraph 2, line 5, of that law, however, leaves no room for doubt that, irrespective of the cases enumerated in paragraph 1, persons who are not domiciled in the territory in which this law is in force, when their stay there is a source of danger to public peace and security, may be expelled from the entire territory in which this law is valid. It follows that the law in question, which applies to all foreigners, was applied in the present instance in perfectly legal form, and the complaint that the imperial and royal authorities, in proceeding against Spitzer, had violated the law of July 27, 1871, is totally unfounded. The further complaint that Spitzer's expulsion, as a punishment inflicted upon him, is in violation of the provisions of Article II of the treaty of September 20, 1870, is also without foundation. In this connection the ministry of foreign affairs would once more call attention to what has already been said repeatedly, and which the note of March 20 last reiterated, that such expulsion is not to be considered as a punishment and can consequently not be called a violation of the treaty of September 20, 1870, which assertion could be made only in case the individual in question was held, on his return to this country, to perform his military duty or would be held to answer the charge of having failed to comply with the military laws. The expulsion ordered in Spitzer's case must therefore be regarded simply as a measure adopted by the authorities to guard against the disturbance of public peace and as a right which every state possesses to exclude from its territory foreign subjects whose behavior brings them in conflict with public interest, a right the exercise of which must be reserved without special agreements and which the treaty of September 20, 1870, had neither the will nor the power to confine. That Spitzer's expulsion is also provided for by the law of July 27, 1871, on the ground of which it was carried out, and that it does not bear the character of a punishment, is seen by reference to line 6, paragraph 2, of this law, which says that in cases where expulsion is inflicted as punishment, it must be provided for by the criminal laws. In view of the foregoing, as well as with reference to the detailed statements which the ministry of foreign affairs has made to the honorable envoy of the United States in this as well as in various similar cases, it is believed that the discussion on this subject in general and on this present case in particular can now be considered as terminated, the more so in Spitzer's case, who, during his recent stay, committed two punishable actions, which alone would justify his expulsion, and of which account was given in the note of the 10th instant to the honorable envoy of the United States. It is with much gratification that the ministry of foreign affairs has learned, from the note mentioned above, that the United States Government is ready and prepared to revise the naturalization treaty of September 20, 1870, according to mutual requirements, for which it renders its thanks and hopes that before long it will be able to make propositions with this view, which are now the subject of discussions by the respective ministries. The undersigned avails, etc., WELSERSCHEIMB, For the Minister of Foreign Affairs. [Inclosure 6 in No. 284.] Mr. Grant to Count Kalnoky. LEGATION OF THE UNITED STATES, YOUR EXCELLENCY: I have the honor to acknowledge the receipt of an esteemed note from the imperial and royal ministry of foreign affairs, dated June 27, and signed by his excellency Count Welserscheimb, second chief of section, which esteemed note was in reply to one from myself numbered 130, and dated the 14th of May. In the above-mentioned esteemed note of the 27th instant his excellency, Count Welserscheimb, in referring to the case of the expulsion of Mr. Leon Spitzer, is pleased to say, on the part of the imperial and royal ministry of foreign affairs, in effect that the discussion of the right of the imperial and royal authorities to expel from this monarchy naturalized American citizens of Austro-Hungarian origin can now be considered as terminated, this being so in particular in reference to Leon Spitzer's case. The authorities of the United States Government have as yet held to the opinion that under the treaty of September 20, 1870, naturalized citizens of the United States of Austro-Hungarian origin were guaranteed the same protection in Austria-Hungary, with three specific exceptions enumerated in the treaty, as that granted to nativeborn citizens of the United States. The imperial and royal authorities of AustriaHungary place a different interpretation upon this treaty. It evidently becomes, therefore, the duty of this legation to discuss each case of explusion of a naturalized American citizen from this monarchy which may arise until the Government of the United States accepts the interpretation given to the treaty by the imperial and royal authorities or until the imperial and royal authorities concur in the interpretation made by the United States Government. This legation makes no reference herewith to the case of Mr. Leon Spitzer and the decision of the imperial and royal ministry in regard to it, but will now hasten to forward a full report of the case to the Department of State at Washington. I avail myself, etc., FREDERICK D. GRANT. [Inclosure 7 in No. 281. Translation.] Law of July 27, 1871, regarding the regulation of expulsion by the police. The expulsion from a certain place or locality can be ordered only against persons who do not belong to the territory where this law is valid, and their expulsion over the frontier by the police can only be applied to the persons herein enumerated: (a) Vagabonds and people unwilling to work, who live on public charity. (b) Individuals without documents and home, who have no income, and no lawful means of living. (e) Public prostitutes who disregard orders to leave given them by the authorities. (d) Criminals discharged from prison, when their stay endangers persons or property. At repeated expulsion return may be prohibited. PARAGRAPH II. The expulsion by the police from one or several places with order never to return, or not to return within a certain length of time, can be applied only to persons enumerated in paragraph 1. It will be carried out when public interests are endangered, principally in that locality from which the person shall be removed. The expulsion of a person from a community where his home and domicile is, is objectionable. When the right to domicile has been acquired in a certain place, expulsion from it can not take place. Aside from this prsous who are not domiciled within the territory in which this law is in force, can be expelled from the entire territory or from part thereof, if their stay, for reasons of danger to public order or security is objectionable. Mr. Foster to Mr. Grant. No. 232.] DEPARTMENT OF STATE, Washington, July 23, 1892. SIR: I have received your No. 284 of the 1st instant, with copies of correspondence relative to the intended expulsion of Leon Spitzer, a naturalized American citizen from Austria-Hungary. Your course in this matter has been in entire accord with the principles maintained by this Government in analogous cases, and your clear exposition and presentation of the law and facts involved leave little to add. This Government can readily appreciate the irritation and resentment experienced by the Austro-Hungarian Government towards its former subjects who had acquired American citizenship merely to evade military duty and having secured immunity return to their former homes and sow dissatisfaction and dissension among the subjects of the Empire. Nor is the Government of the United States desirous to extend its protection to that class of persons who assume none of the duties of citizenship while claiming all of its privileges and benefits, and has expressed its readiness to consider any proposition which the Austro-Hungarian Government may make with a view to modifying the naturalization treaty of 1870. But so long as the treaty remains in force the United States Government will insist upon a strict compliance with its terms, and after a careful examination of the case in point is reluctantly obliged to dissent from the views expressed by the Austro-Hungarian Government. Leon Spitzer was expelled forever from the dominions of AustriaHungary, as alleged by the Government of that country, in accordance with the provisions of Article II, section 5 of the law of July 27, 1871, which reads as follows: . Aside from this, persons who are not domiciled within the territory in which this law is in force can be expelled from the entire territory or from part thereof, if their stay for reasons of danger to public order or safety is objectionable. Although the right of a government to expel objectionable characters from its territory is no more denied than its right to enact any other laws or regulations of intra-territorial force which it may deem suitable or necessary, nevertheless, when such laws or regulations affect citizens of the United States, this Government expects that they be founded on the principles of reason and justice, and that they should not merely emanate from the will of an arbitrary power. Reasonable grounds therefore should exist and be made known justifying the expulsion of Leon Spitzer from the Austro-Hungarian Dominions. I premise that as the case of Leon Spitzer does not come under the three exceptions specified in the naturalization treaty of 1870, he is in all respects and purposes on an identical footing with a natural-born American citizen. The reasons alleged by the Austro-Hungarian Government for Spitzer's expulsion and which I quote in full from the note of Count Welsersheimb for minister of foreign affairs, to you of the 10th June, 1892, are inadequate and inconclusive. He says: The sentence is based upon the following facts: Leon Spitzer, who went to America when he was 16 years old, was naturalized · there in 1889, without previously having rendered his military obligations in this country, nor without first having obtained the consent to emigrate, as provided by the Austrian laws, although he was notified by the imperial royal consulate-general in New York, under date of July 16, 1887, by order of the magistrate of this city to report within six months to the military board of examination at Vienna, for the purpose of military duty. Nor have any subsequent steps been taken by Leon Spitzer, or his father, Moritz Spitzer, to justify his son's neglect or to make good his shortcomings. Not until the beginning of 1890, after having acquired naturalization in the United States, Spitzer returned to Austria and took up his permanent residence in Vienna. The above named having therefore by avoiding to render his military duty and by taking up his domicile here, given a stimulus to actions tending to weaken the armed force of the monarchy. The minister of the interior adds that the dispositions made regarding Spitzer are fully based upon the provisions of the law and of article second of the treaty of September 20, 1870, because the expulsion of Spitzer, whose name was struck from the conscription rolls after his American citizenship had become evident, was not decreed as a punishment for nonfulfillment of military duty, but rather as a measure adopted by the authorities for the protection and in the interest of public order. This alone must be regarded as a justifiable and legal act, irrespective of the fact that Spitzer, during his stay and since his return, was sentenced by decrce of the court at Hietzing, dated August 16, 1891, for forging a public document and fined 15 florins for assault and battery. His expulsion for these reasons was perfectly legal and was demanded by public order and security. The first paragraphs would seem to indicate that Spitzer was expelled for nonfulfilment of his military obligations, but the untenability of this position is admitted immediately afterwards when the minister of the interior states that his expulsion "was not decreed as a punishment for nonfulfillment of military duty but rather as a measure adopted by the authorities for the protection and in the interest of public order." The last paragraph alleges that Spitzer was convicted of forging a public document and was fined 15 florins for assault and battery as an additional reason for his expulsion. But in the note of June 27 from Count Welsersheimb to you, he states that where expulsion is inflicted as a punishment, it must be provided for by the criminal laws." Spitzer was therefore by distinct admission not expelled for violation of his military obligations nor for the crime and offenses of forgery and assault, but purely as a preventive or precautionary measure, by the arbitrary degree of the Austro-Hungarian Government. Had Spitzer been expelled for an action punishable by the laws of his original country committed before his emigration, including avoidance of or desertion from his military obligations, this Government would have no occasion to intervene. And this would be equally true had Spitzer been expelled by the judgment of a competent court for the alleged crime of forgery or perhaps the offense of assault. As however he was expelled on the vague and indefinite ground of "the interest of public order," and as no valid and explicit reasons in support of the order are alleged, your action in making a formal protest is approved by the Department. I am, etc., JOHN W. FOSTER. |