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Description of applicant.

Age, thirty-three years; stature, 5 feet 6 inches; forehead, straight; eyes, gray; nose, medium; mouth, medium (mustache); chin, round (bearded); hair, brown; complexion, fair; face, oval.

Identification.

BUDAPESTH, February 10, 1890.

I hereby certify that I know the above-named Bela Washington Foruét personally and know him to be a native-boru citizen of the United States, and that the facts stated in his affidavit are true to the best of my knowledge and belief.

ALEXANDER BAMSHOS.

No. 67.]

Mr. Grant to Mr. Blaine.

LEGATION OF THE UNITED STATES,

Vienna, March 11, 1890. (Received March 31.) SIR: I have the honor to inclose herewith for your information a copy of a translation of a note which I have just received from Baron Pasetti, chief of section at the imperial and royal ministry of foreign affairs, which communication is in reply to a note addressed to Count Kalnoky by me, in compliance with your letter of instructions No. 25, under date of October 8, 1889, in reference to the expulsion from this empire of Hugo Klamer, a naturalized American citizen of Austrian birth. My note to Count Kalnoky was in spirit and language strictly in accordance with your instructions.

The only points brought out by this note from Baron Pasetti, which have not already been the subject of correspondence, and of which the State Department has not already been fully advised, are

First. The intimation on the part of Baron Pasetti that a native of Austria or Hungary, who by emigration has become a citizen of the United States and afterwards returns to this monarchy, occupies so enviable a position that he fears that the example might be followed by others. Second. The intimation that, in consequence of the framing of the "imperial military law" No. 153, of October 2, 1882, the authorities here now view or interpret the treaty of September 20, 1870, from a standpoint different from that taken by the United States Government. is assumed that both governments were in accord as to the interpretation of this treaty until after October 2, 1882.

It

Third. The statement that "a change in the situation can only take place when the provisions of the treaty of 1870 are revised," and, further on, "the imperial royal minister of foreign affairs intends to revert once more to the principles involved in this question," all of which, it is presumed means that it is the intention of the imperial royal minister of foreign affairs to submit to the United States Government propositions for the amendment of the treaty of September 20, 1870. If the United States Government is willing to admit the present interpretation given to the treaty of September 20, 1870, by the Austrian authorities, then it is impossible to see why the imperial authorities should desire any change to be made in the provisions of the treaty. It might also seem useless to amend the provisions of a treaty when the officers of one of the nations concerned claim the right to change the interpretation of the treaty whenever their Government finds it convenient to make a new law. It seems not to have occurred to the baron that the authorities at Washington may refuse to submit to the changes made

by the Austrian authorities in the interpretation of this treaty, or that the Government at Washington might refuse to negotiate for an amendment, upon the ground that there were cases pending which the American Government considered violations of the treaty on the part of the Austrian Government.

In awaiting, Mr. Secretary, your further instructions,

I have, etc.,

[Inclosure in No. 67.-Translation.]

Baron Pasetti to Mr. Grant.

F. D. GRANT.

VIENNA, March 5, 1890.

The honorable envoy of the United States of America, Col. Frederick D. Grant, was pleased to revert to the expulsion of Hugo Klamer in his esteemed note of November 12 last, No. 23, and to ask for information relative to the charges preferred against him by the director of police of this city.

The ministry of foreign affairs has accordingly reexamined the records relating to Klamer's expulsion, and has come to the conclusion that the proceeding adopted at the time by the authorities was correct and lawful. The expulsion took place in conformity with article 2, section 5, of the law of June 27, 1871, No. 88, because his stay in Austria was considered inconsistent with public order.

Klamer, at the time he was still an Austrian citizen, had repeatedly neglected to obey the summons to perform his military duty, and had acquired his American citizenship at the very age when he was liable to serve in the army, without having received the permit to emigrate, which the Austrian laws prescribe to persons under such circumstances. Not coming under the provisions of 1, 2, and 3, of Article 2, of the treaty of September 20, 1870, he was not, on his return to Austria, held to perform subsequent military service. The treaty has therefore not been violated, inasmuch as the United States citizenship of Klamer was recognized.

The above-mentioned treaty, however, does not deprive the imperial royal Government of the right to issue a decree of expulsion against any foreigner whose stay in the country may be considered as being inconsistent with public peace. In the present case the United States citizenship was obtained with the evident intention, or at least with the full knowledge, of avoiding, by so doing, the performance of the duties of an Austrian subject, under the protection of the treaty of the year 1870.

The naturalization took place, therefore, when regarded from an Austrian legal point of view, doubtless in fraudem legis. The return of such a person to his former home for the purpose of final settlement, is an open disregard of the laws of the country, calculated not only to prompt others to do likewise, but also to excite the envy of those subjects who perform the duties imposed upon them.

In the note of November 12 last it is admitted that Klamer, after having been summoned for military duty, had taken steps to have his name struck from the army list; that he was aware, therefore, of his liability; and that he acquired his United States citizenship without awaiting the result of his application.

For these reasons the imperial and royal Government must protest against the return of such individuals as being detrimental to public order.

The provisions of the Austrian and of the Hungarian military laws of October 2, 1682, No. 153, were not framed until after the treaty of September 20, 1870, had been concluded. The result is that the United States Government does not always judge the proceedings of the authorities here against former Austrian or Hungarian subjects from the same point of view, however justified the measures may be, according to our laws.

A change in this situation can only take place when the provisions of the treaty of 1870 are revised, which gave rise to these misunderstandings, keeping intact the stipulations which have proved otherwise so beneficial and well adapted. The Government of the United States will perhaps be the more ready for such a revision, as it can hardly be desirous to receive an increase of a class of individuals who remain in the country only long enough to acquire naturalization and then return to their former home to live, under the protection of the treaty. The I. and R. ministry of foreign affairs intends to revert once more to the principles involved in this question.

Leaving it to the option of the honorable envoy of the United States to make his Government acquainted with the contents of the foregoing statement, the undersigned begs to avail himself, etc.

(For the minister of foreign affairs.)

M. PASETTI.

No. 51.]

Mr. Blaine to Mr. Grant.

DEPARTMENT OF STATE, Washington, March 25, 1890. SIR: Your dispatch, No. 63, of the 24th ultimo, has been received. You therein present certain general considerations touching the cir cumstances under which naturalized citizens of the United States frequently return to, and reside in, Austria-Hungary, and you further state the case of one Bela Washington Fornét, an applicant for a passport. You thereupon ask general and special instructions.

Your recital of the political and business advantages which accrue in Austria-Hungary to a native thereof, by reason of a change of his allegiance in youth and return to his native place there to enjoy exemp tion from the burdens and duties which bear upon his former associates, is, of itself, sufficient to justify the caution with which the question of alien protection should be treated in such cases, and throws light on the observed tendency in Austria-Hungary to restrict the rights of domicile of such persons.

In view of the frequent applications for passports made to you by persons so situated, and generally by American citizens whose stay abroad is indeterminate, you formulate six points upon which you ask the views of the Department:

(1) For how many years may a citizen of the United States reside abroad without losing his American domicile ?

(2) Would any limit of time in this regard apply to native as well as naturalized citizens, or only to the latter?

(3) Applicants for passports being required to state under oath the time within which they intend returning to the United States, what is the longest period of time they may fix?

(4) If an applicant refuses to swear that he will return to the United States within a fixed time, should a passport be refused him?

(5) Does the limit of time referred to in questions 3 and 4 apply equally to native-born and naturalized citizens?

(6) If application is made to you for the renewal of a passport, and it appears on examination that the time has expired within which the bearer of the old passport stated his purpose of returning to the United States, and that, nevertheless, he has not been to America to resume the duties of citizenship, should a renewal of his passport be declined? In reply to your first question, I have to say that there is no fixed term of foreign residence by which the loss of American domicile is decided. The domicile of a person depends upon his intention, which is to be determined upon all the facts in the case. In the determination of this question no distinction is made between native and naturalized citizens, but the comparative periods of residence in this and in foreign countries are to be considered in arriving at the real intention of the individual.

This observation answers your second question.

From what has been said, it results that the Department is unable to fix a certain and constant period within which a person must return to the United States. This answers your third and fourth questions, and the reply made to your second question applies also to your fifth. In answer to your sixth question, I have to say that where, in his application for a passport, a person makes oath that he intends to return to the United States within a certain time, and afterwards, when he applies for a renewal of his passport, it appears that he has not fulfilled that intention, this circumstance raises a doubt as to his real

purposes and motives, which he may be called upon to dispel. The unfavorable presumption which he has by his own act created is not conclusive against him, but he should be asked for explanation.

As has been stated no distinction is made between native and naturalized citizens. But certain elements of fact may exist in the case of the latter which do not arise in the case of native citizens. For example, we will take the case of a native-born subject of a foreign power, who, having grown up under its protection and owing it allegiance, comes to the United States and immediately after acquiring naturalization returns to his country of origin to reside, claiming exemption from the burdens of its citizenship, but performing none of the duties of citi zenship in the United States. To permit such a thing to be done for the purpose of evading the obligations of allegiance, would be to promote a fraud under the guise of expatriation. To meet such a case we find that it has generally been provided in our treaties of naturalization that, where a citizen of one of the contracting parties, naturalized under the laws of the other, returns to his original country and resides there for two years, he may be held to have renounced his naturalization. The adverse presumption thus created may be rebutted. In deciding whether it has been, all the facts in the case must not be considered together, but these facts must be inconsistent with his resolve and his practical ability to return hither and fulfill the obligations of citizenship. I gather from the tenor of your dispatch that the circumstance of the applicant being engaged in business in the country of his residence may have its influence in leading you to a conclusion. The fact may have importance, in opposite directions indeed, in connection with all the other facts. An American, whether by birth or naturalization, residing abroad, in representation of an American business, and keeping up an interested association with this country, is in a different case from an alien who returns, immediately after naturalization, to his native place, there to engage in a local calling and, it may be, marrying there and exhibiting every evidence of an intention to make his home among his kindred. In the latter instance it would require strong proof to countervail the prima facie presumption that his naturalization was obtained solely to enable him to dwell thereafter in his native land without subjection to the duties and burdens of native citizenship.

I now proceed to consider the special case of the application of Mr. Bela Washington Fornét, as presented by you. Born in New York July 19, 1857, of parents then naturalized citizens of the United States, he went abroad when only a little more than seven years old, and has remained out of this country for over twenty-five years. He would appear to have resided at Budapesth continuously for about nine years at least, or since the declaration he is stated to have made there before the mayor and the United States vice-consul, when about twenty-four years of age, of his purpose of retaining his American citizenship. He has, you add, apparently never before applied for a passport. His sworn application is consistent with these statements, adding nothing thereto except that he desires the passport "for the purpose of going to America," but to what part of America is not stated. The old form is employed, and does not include the declaration, now required, of intention to return to the United States and fulfill the duties of citizenship.

Knowledge upon certain points might aid the Department in giving you more precise instructions in this case than are now practicable. It might be stated, for instance, whether his parents were originally subjects of Austria-Hungary, and whether they abandoned their domicile in the United States, although this is not essential in view of the fact,

as would seem, that the Austro-Hungarian Government makes no claim upon the applicant's allegiance. If the circumstances of his return gave rise to an option of citizenship on his part after reaching majority, his right to do so would appear to have been acquiesced in by the Austro-Hungarian authorities. Information is also desirable upon the character of Mr. Fornét's domicile at Budapesth, and touching the nature and effects of his contemplated visit to "America."

If the facts point to his making Budapesth his permanent home, the presumption arising therefrom is not to be offset by a merely temporary visit to the United States, as to a foreign country. The essential thing is that his domiciliary status in Austria-Hungary shall not evidently conflict with any declared intent to make his home in the country from which he claims protection as a citizen.

A copy of the new form of application, of which copies are herewith inclosed, may be sent to M. Gerster, the vice-consul at Budapesth, with instructions to invite Mr. Fornét to fill it out in substitution of the one already filed with you. M. Gerster may, at the same time, be instructed to put to the applicant such inquiries as you may deem calculated to throw light on his actual status and intentions. If the result should satisfy you that the passport is not sought evasively, and that an honest and realizable purpose is manifest to make the United States his home and assume the duties of a good citizen, notwithstanding the adverse presumption raised by the facts so far as disclosed, you may issue him the passport.

I am, etc.,

[Inclosure in No. 5,]

JAMES G. BLAINE.

FORM OF APPLICATION FOR PASSPORT BY A NATIVE CITIZEN OF THE UNITED

STATES ABROAD.

No.
Issued,

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a native and loyal citizen of the United States, hereby apply to the legation of the United States at for a passport for myself, accompanied and minor children, as follows: born at on

by my wife,

the day of

18-, and

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in the State of on or about the day of citizen of the United States; that I am domiciled in the United States, my permanent residence being at in the State of —, where I follow the occupation of ; that I left the United States on the day of —, 18—, and am now temporarily sojourning at --; that I am the bearer of passport No. issued by that I intend to return to the United States within ing and performing the duties of citizenship therein; and that I desire the passport for the purpose of

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Further, I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."

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