of this office and the report of consuls, I had hoped the unpleasant occurrence would have terminated in the prompt erasure of the name of John Benich from the rolls of the army and navy of Austria-Hungary, with such apologies and reparation on the part of the offending officials as the gravity of the case would seem to demand and the apparent disrespect shown to a friendly sovereign power might lead my Government to reasonably expect. From a careful reading of the record of this case, and governed by my knowledge of the apparent desire and prompt action always exhibited on the part of the honorable imperial and royal ministry of foreign affairs of Austria-Hungary in protecting the rights of American citizens within its jurisdiction, I am indubitably led to the conclusion that some misunderstanding of the real facts of this case has misled the honorable minister in his action, or rather the nonaction of the foreign department, in failing to give this matter the attention that its apparent gravity deserves. 'I am assured that no difference of opinion can arise as to the legal questions involved or as to the rights of the respective governments under the treaty of 1870 in reference to naturalized citizens and the immunities and protection which such citizens are entitled to claim from the nation in which they may have their temporary domicile.

The facts in the case of John Benich, stated briefly but more specifically than in the letter of my predecessor, Col. Grant, are as follows:

Benich was born in the province of Croatia, Austria, in 1871; in 1885, when not quite 14 years of age, he emigrated to the United States, and took up his residence in the city of Chicago. He continuonsly resided in the United States until he became of age (21 years), when, upon his application, on the 5th day of October, 1892, before the superior court of Cook County, Ill., in the city of Chicago, be was adınitted to citizenship; in the spring of 1893 he accompanied his sick father to Vienna, Austria, intending to return immediately to his home in Chicago. At Vienna, on the 15th of April, 1893, he received from the United States legation a passport in due form, having made proof of the above facts to the satisfaction of the American minister at that legation, which passport is numbered 379. At Novi, in Croatia, on the 16th day of May following, he was arrested by the military authorities and held for military duty. He immediately appealed to the U. S. consular agent at Fiume, Mr. Gelletich, who intervened in hiis behalf, and who translated into their own language and read to the military authorities who held Benich in arrest, and to the judicial authorities before whom he was brought, both his certificate of naturalization and his passport; but instead of respecting these papers or releasing him from arrest, they forcibly stripped him of his citizen's clothing and put upon him the uniform of an Austrian soldier, and to the gentlemanly protest of the American consular agent they made the contemptuons reply that “they did not recognize the convention of September 20, 1870, nor the authority of the U. S. consular oficer." Benich was immediately enrolled and sent forward to active service as a soldier in the Austrian army. Mr. Gelletich, the U. S. consular agent at Fiume, reported these facts to the U. S. minister at Vienna, Col. Grant, who immediately addressed the honorable imperial and royal ministry of foreign affairs of Austria-Hungary his note of May 21, and to which Count Welsersheimb, for the imperial and royal minister of foreign affairs, was pleased to reply by his esteemed favor of June 23.

I nowhere tind in the records that the contemptuous language and acts of the officials at Novi have been brought to the notice of the honorable ministry of foreign affairs, and I am assured that such conduct on the part of provincial authorities toward the representatives of a foreign and friendly government and such open disrespect of the solemn contract and treaties of sovereign nations will be promptly visited with the condemnation it deserves. The passport of a sovereign government, issued to one of its citizens, is the exercise of one of its highest national prerogatives, and such paper carries upon its face the implied assumption that its bearer will be treated with that international courtesy and respect which the citizens of the visited country have the right to expect and demand in return. The doctrine of expatriation between the friendly Governments of Austria-Hungary and the United States has been set at rest by the solemn compact entered into between the two great nations on the 20th day of September, 1870. The right of naturalization of the citizens of the respective governments has been definitely provided for by the terms of the treaty itself. Under its provisions any or every citizen of the one government can become a citizen of the other by residing therein for the period of five years and complying with the conditions of the naturalization laws of the respective government, reserving on the part of such government only the right to punish the former citizen for offenses committed by him against the government of the native country before expatriation began.

It will not be contended that Benich, who expatriated himself at the infant age of 14, could have been answerable for any offense against the military laws of his native land under the provisions of this treaty, nor is any criminal offense alleged against him that could possibly have led to a military arrest. It will hardly be contended, nor can the Government of the United States for a moment admit, that the provincial authorities of Croatia had any right to pass upon the question of the citizenship of Benich. In the most solemn form known to American law a high court of judicature has by its judgment passed upon the facts which determine his right to American citizenship, and of such force and effect is this judgment of our conrts that the Supreme Court of the United States has said it is entitled to the same respect as other judgments of courts of record, and that it must be so observed until vacated or reversed by a court of superior jurisdiction; and no less an authority than the late Hamilton Fish, foriner Secretary of State, has held such judgment absolutely binding upon the political departments of our own Government. But whether or not such judgment be binding upon the political departments in a case where fraud may have been employed in its procurenient, it is submitted that when the passport carries upon its face no indicia of its own invalidity it is prima facie valid and should be respected as such by the nation that issues it and by the authorities of the nation to whom it is presented; that whatever may be the ultimate right of the foreign nation to inquire into the fraudulent character of the instrument itself, it can only be done by the tribunal of a national character, governed by and subject to the jurisdiction of international law. Neither municipal authorities nor provincial officers should be permitted to determine or set in motion an inquiry directed toward the discrediting or annulment of papers issued by a friendly nation in solemn form, under its national seal, and by authority of its highest department of state. It is further submitted that the nation which has passed upon the question to be determined is the final arbiter of the matters involved in such deliberation, for no higher power exists by which its determinations can be modified or annulled, and in case such determination should be found to be at variance from the views or findings of the other nations interested therein, the final determination of the disputed question would be one of international concern, to be finally determined as such questions must be-between the nations themselves. If one nation has passed upon and determined a question in which the other has or may have an interest, such as the citizenship of one of its subjects, and the nation whose interests are injuriously affected by such decision is of the opinion that it was procured or is being used in fraud of its own national rights, a suggestion of such fact to the nation by whom it was made would place in motion a courteous and effective remedy by which the error could at once be corrected and the dignity of the two nations concerned be maintained, without endangering the amicable relations existing between them; for it will be presumed that the nation upon whom a fraud has been practiced would be as anxious to correct the error and punish its author as the other party could possibly be. It is also submitted that the passport is and must be treated by the municipal authorities of the friendly nation to which it is presented, as absolute evidence, when fair upon its face, of the facts which are recited therein; that neither its bearer nor the government by which it is issued can be called upon by the inferior and municipal authorities of the government to which it is presented to corroborate by additional and extraneous evidence the ultimate facts which have been passed upon and determined in this most solemn and judicial form. It is believed that this is not only the view universally taken of this question by the civilized nations of the world in their relations with each other, but it is the positiou taken so emphatically and uniformly by my own Government that I shonld feel I were derelict in my duty as its representative did I not firmly but courteously insist that the municipal authorities of Croatia must learn to observe and respect the passports of American citizens, and that they be held responsible for injuries sustained through their unwarranted and unlawful arrest of persons bearing such papers. Said Mr. Frelinghuysen, former Secretary of State, in reply to the assumed authority of the Mexican ofticials to pass upon the validity of certificates of naturalization : "The assumption of the Mexican Government of a right to inspect and decide upon the validity of certificates of naturalization issued by the numerous courts in preference to receiving the proofs afforded by a passport of this Department must be regarded as wanting in proper courtesy to the

government of a friendly power.” (2 Whart. Int. Law, 480, Ø 195.) Mr. Evarts, one of the ablest lawyers who has ever filled the chair of the Secretary of State at Washington, states the proposition more emphatically, denying the rights of the authorities to demand an inspection even of the naturalization paper of a citizen who bore the passport of his Government. He says: “The pretension of that Government to ignore the passport of this Department and to require an inspection of the certificate of the naturalization of an alien can not be acquiesced in. You will distinetly apprise the minister of foreign affairs to that effect, and will add that this Government will expect to hold that of Mexico accountable for any injury to a citizen of the United States which may be occasioned by a refusal to treat the passport of this Department as sufficient proof of his nationality.” (2 Wharton, Int. Law, p. 480, Ø 195.)

It is believed that no new doctrine of international law is announced in the above questions, and it is confidently expected that the position taken by this legation will be conceded by the honorable ministry of foreign affairs of Austria-Hungary as the one that must govern all friendly nations in their relations with each other. And it is intended that the views expressed in this note may be taken as applying also to other cases pending before the foreign office, for not only Croatia but several other provinces of Austria-Hungary seem to arrogate to themselves the right of passing upon the naturalization of American citizens temporarily staying in their focality, and of determining by evidence dehors the record of the passport and certificate of naturalization, the ultimate facts which affirm or deny the validity of the papers themselves. This note is therefore written with the assumed confidence that the honorable imperial and royal ministry of foreign affairs of Austria-Hungary will immediately cause any investigation now being had before the local authorities of Croatia to be abandoned and dismissed, that any information which has been received by the honorable imperial and royal minister of foreign affairs, and which has raised in his mind a doubt rising to thie dignity of a suspicion as to the validity of the certificate of naturalization borne by Benich, may be reported to this legation, to the end that the Government of the United States, from whose State Department such papers were issued, may direct a proper investigation to be made, and the frand, if such has been committed, be punished as it deserves; that the local authorities of Croatia be required to make proper reparation to Benich for such injury as be may have sustained through their lawless and unwarranted action; and that such further action may be taken in the premises as will in the future prevent the frequent occur. rence of these arrests of American citizens, bearing American passports attested in proper form, while temporarily remaining within or passing through the provinces of Austria-Hungary.

Taking this occasion of extending personally my thanks, as well as the high appreciation of my Government, for the prompt and considerate action taken by the iniperial and royal ministry of foreign affairs of Austria-Hungary in protecting the rights of American citizens within its jurisdiction in the present cases before it, I beg, etc.,


[Inclosure 2 in No. 93.]

Mr. Hüning to Mr. Gelletich.


Vienna, February 17, 1894. SIR: Referring to previous correspondence on the matter of the arrest of John Benich, a naturalized citizen of the United States, for alleged violation of the military laws of Austria-Hungary, I beg leave to intorm you that the U. S. minister directs me to inquire whether anything further has come to your knowledge respecting his case, whether he is still in Austria, or any other iuformation which you think likely to be of interest to learn. I am, etc.,


[Inclosure 3 in No. 93.] Mr. Gelletich to Mr. Tripp.


Fiume, February 20, 1894. Sir: I beg to acknowledge the receipt of your favor of 17th instant referring to John Benich, a naturalized citizen of the United States, for alleged violation of the military laws of Austria-Hungary. I have the honor to inform you that the said John Benich, after having been released by the military authority, lived two months in his father's house, and in the month of October returned to the United States and precisely to Chicago. This information was transmitted at the time to Mr. Hammond, U. S. consul at Budapest. A few weeks ago I received a letter from the said John Benich, who requested me to inform him about his case, and if he was canceled from the rolls, so that he may be free to return to this country in a year or two, for the purpose of getting married. This information I requested of Mr. Hammond at Budapest, and I received the reply that the consul was too busy with consular business to occupy his time in this case, and if Mr. Benich wanted to know about his case to employ a lawyer. I do not know now what I am to reply to the said Benich, and I beg you will be kind enough to inform me if you know anything about it. I am, et.,


(Inclosure 4 in No. 93.]

Mr. Gelletich to Mr. Tripy.


Fiume, March 23, 1894. SIR: I beg to inform you that the chief of the political district of Sussak-Tersato appeared in my office and informed me that John Benich is canceled from the rolls of the army, and further informed me that he is instructed to give satisfaction for the offense to U. S. consular authority, and requested me in what manner I require such satisfaction.

I beg yon to inform me what I am to do, and what kind of satisfaction I am to ask
of the said chief of political district.
Awaiting your kind reply,
I am, etc.,


(Inclosure 5 in No. 93.)

Mr. Tripp to Mr. Gelletich.


Vienna, March 25, 1894. DEAR SIR: I have your favor of the 23d instant, as well as your letter of February 20, in reference to John Benich, which last-named letter I have delayed answering until I could have something more definite from the ministry of foreign affairs of Austria-Hungary.

In reply to your inquiry as to what kind of satisfaction you should demand of the district officers for the disrespectful treatment of yourself on the occasion of arrest of John Benich, I have only to say, the Government of the United States expects and demands respectful treatment of her officers, on all occasions, when acting in their official capacity, and if the officer of another Government has willfully or ignorantly failed to accord such treatment, or has by his acts not only ignored, but treated with open contempt, the authority of an officer of another Government, not only the law of nations, but that pertaining to the most ordinary relations of gentlemen with each other, requires that he should admit his error by such acts of recognition as one gentleman should always know how to express to another.

You are not in a position to speak for the Government you represent, further than to be satisfied as to a proper apology for the insults you may have received in your representative capacity, and whatever therefore, by way of an apology to yourself, or recognition of error committed on the part of the district officers, may be satisfactory to you will be satisfactory to the Government of the United States, so far as its official dignity or its national honor may be a matter of diplomatic concern. Hoping that this unpleasant matter may soon be satisfactorily terminated, I have, etc.,


(Inclosure 6 in No. 93.]

Mr. Gelletich to Mr. Tripp.


Fiume, May 26, 1894. Sie: In the case of John Benich, American citizen illegally recruited, and this case ended satisfactorily, I beg to inform you that yesterday I received a letter from the royal district authority of Sussak. I beg to inclose a translated copy from Croatian langnage, and with this letter I hope that the matter has ended.

The chief of the district authority also appeared in my office and verbally expressed his regrets for the occurrence. I am, etc.,


Copy of inclosure.

FIUME, May 22, 1894. To the honorable the Consular Agent of the United States at Fiume :

SIR: I take the liberty to express to your honor my deep regret regarding the case which happened on May 20, 1893, in the matter of your protest for the recruiting of John Benich, and I assure you that this case, based on misunderstanding, shall not alter at all in the future the good and friendly relations which have existed from early times between the royal district authority of Sussak and the honorable con. sular agency of the United States of America in Fiume. Accept, etc.,


(Inclosure 7 in No. 93.- Translation.)

Count Welsersheimb to Mr. Tripp.

Tho imperial and royal ministry of foreign affairs has not failed to address itself to the royal Hungarian ministry in compliance with the esteemed note of September 26, 1893, No. 24, in reference to the enrollment in the army on May 20, 1893, of John Benich, a naturalized citizen of the United States, asking that he be definitely discharged from the imperial navy (of which temporary discharge the foreign office had the honor of informing the honorable legation in the note of June 23, 1893), and that full investigation be made relative to the manner of procedure adopted by the Croatian authorities at Novi toward the intervening U. S. consular agent at Fiume, Mr. Gelletich, and the judgment passed upon similar cases by the Croatian authorities.

The imperial and royal ministry of foreign affairs, having received the respective information from the royal Hungarian minister, president, is now in a position to report to the honorable legation of the United States the result of the investigations, as well as the consequences deduced by the Croatian authorities, adding that the delay in the present instance is due partiy to the minute and careful treatment which the case has received on the part of the officials charged with its examination, and principally to the many facts, which, in order to ascertain them, had to be referred to the competent Hungarian central bureaus, which necessarily required a greater length of time.

The result of the investigation, as it now appears on the records, is as follows:

Ivan Dominik Benich, born August 3, 1871, at Dvorska, community of Crkvenica, legal son of Michael and Helena Benich, Hungarian by birth, received a passport from his home anthorities on March 21, 1884, No. 2318, good for three years, and for Amer. ica, and by his own declaration, on record, as well as by the testimony of Andria Car, his traveling companion, left his home for the first time in 1885 as a youth 14

The above-named Andria Car, as well as Ivan Benich himself, both state, and sereral other witnesses testify to the fact, that Ivan Benich returned to his native place in October or November, 1888. His first absence, therefore, lasted only three years and several months. The time from November, 1888, to the 24th of April, 1889, he passed in his native town, Dvorska, as testified by the following witnesses: Maria Benich, Jelena Brujac, Mate Skreljan, Tomo Katnic, Ana Benich, Ivanova Felicina Benich, Ivan Katnic.

Additional proof of this statement will be found in the fact that an entry on the records of the parish church in Crkvenica shows that Ivan Benich officiated in the above-named church as an official witness to a baptism three times, namely, on November 11, 1888, November 24, 1888, and on February 27, 1889. His mother also testifies that he passed the winter from 1888 to 1889 in the house of his parents, and that he was present at the marriage of Bartol Zupan in Ladvic, which took place on January 18, 1889. This last fact is also corroborated by Katharina Zupan, Ursula Zupan, Ana Brenjac, and Moztin Zupan. The innkeeper, Ivan Dracic, confirms that during the carnival of 1889 Benich arranged balls in his house, and that on the last three days of the carnival of that year, namely, on March 3, 4, and 5, he stopped in his house. An official certificate given by the connty clerk of Modens, Fiume, and Buccari shows that Ivan Benich, at his own request, obtained a passport dated on the 9th of February, 1889, numbered 361, good for two years, for Bosnia and the Herzegovina.

The witnesses, Vicko Car, Ivan Zupan, and Andria Car, testify that Benich left his home for the second time on April 24, 1889, and went via Fiume to Bremen, where he embarked, together with the above-named three persons on board of a North German Lloyd steamer, in May, 1889, and arrived in New York, whence he started

years old.

« ForrigeFortsett »