asked that the order of expulsion be revoked. The Austrian Government stated that Fischer, at the time of his emigration, was classified as a person “remanded," and was under an obligation to report for a later examination. It was admitted that his naturalization was valid under the treaty of September 20, 1870, but it was maintained that his expulsion was not to be considered as a punishment, but as an administrative measure. It was, said the Austrian Government, a measure inspired by "consideration for public order, and is based on the belief that the latter suffers offense when a person, by assuming foreign citizenship, avoids performance of those duties to his country which are placed upon him as upon all his fellow-citizens, and then, protected by this new citizenship from the punishment otherwise resultant from this avoidance of duty, returns and settles permanently in the midst of his former countrymen, who find themselves in a condition not so favorable as is his. Such an act is not only provocative of discontent in all those who fulfill their obligations to the state, be their fulfillment voluntary or compulsory, but it acts also as a bad example, and, were such proceedings unchecked or of frequent occurrence, would work positive harm to the defensive power of the state. . . The offensive impression and the corruptive influence of the action under discussion lie in the extreme conditions under which Fischer, who was still pledged to duties to the state in this country, accomplished his naturalization in America, and also in his return here to settle in Austria. It is immaterial whether the intention to return, after avoiding military duty, was already formed in his mind, as it is in a majority of such cases, or whether the intention to return, perhaps originally nonexistent, was formed at a later date." Count Szecsen, ministry of for. aff., to Mr. Harris, Amer. min., June 5, 1900, For. Rel. 1900, 21, 22. Commenting upon this note, the Department of State observed that "the weakness of this position is that it does not rest upon any averment of offensive conduct on Mr. Fischer's part which would justify the individual application in his case of the right of expulsion, but, rather, appears to lay down a general principle whereby the expulsion of every American naturalized Austro-Hungarian, who was under admitted liability to serve at the time of emigration, would be a necessary proceeding under the general policy of the state. Such a sweeping doctrine would to a serious extent neutralize the provisions of our naturalization treaty with Austria-Hungary. That instrument, weighing all the circumstances under which persons of military age might emigrate without fulfillment of their obligations, discriminated between the classes securing immunity by naturalization and those not so securing it. It can not be expected that this Government will acquiesce in a comprehensive enlargement of the nonim mune class by the ex parte act of the other contracting party." It was also observed that, so far as the Austrian answer dealt with the merits of the case, it comprised two distinct propositions Mr. Fischer's action prior to his naturalization and his action since. The first, as had been stated, 'was covered by stipulations of the treaty, and the second, which imputed to him an intention to settle in Austria, brought his case within article 4 of the treaty, which seemed to import that a naturalized citizen might reside indefinitely in the country of his origin without incurring any disability and without being obliged to resume his original citizenship. The Department of State further said: "Mr. Fischer, it now appears, has asked that the order of expulsion be postponed until September, and his petition has been granted. This arrangement may be deemed to embrace a voluntary engagement on his part to quit Austro-Hungarian territory by a given date, and he will be expected to abide thereby, the principles upon which this Government rests in contesting the general claim of the Austro-Hungarian Government wise prejudiced by Mr. Fischer's action. being in no You should make our views upon this point and upon the broader point of expulsion for individual cause clear to the minister of foreign affairs." Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, July 19, See, also, Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, The Government of Austria-Hungary having stated that the treaty of September 20, 1870, contained no provision granting to American citizens the right to remain, and particularly the right to remain indefinitely, in Austria, and that their right to remain was therefore subject to the laws of the country, according to which (particularly Clause V., par. 2, law of July 27, 1871) persons who are not Austrian subjects may be expelled from the entire territory or from part thereof, if their stay, for reasons of danger to public order or security, is objectionable," the United States observed that the question whether naturalized citizens of the United States of Austrian origin might be expelled from Austria, as well as the question when they might be so expelled, would seem to depend upon the particular circumstances of each case; that the United States maintained that the "pernicious character of the returning person should be affirmatively shown in justification of the extreme resort to expulsion, and that the right so claimed should not rest on a vague and general theory of inconvenient example which might be stretched to cover the cases of all Austro-Hungarians naturalized here, and returning to their original jurisdiction;" that the treaty undoubtedly gave the right of inoffensive return, and that this stipulation was not to be impaired by construction. The Austrian foreign office had alleged as the ground of expulsion in the case under consideration that "the ostentatious manner in which he [John Richter] evaded his legal duty to do military service is causing public scandal and may very easily give others an impetus to similar demoralizing acts." As Richter was only 14 years of age when brought to the United States and would not have been subject to military duty till he reached the age of 19, it might, said the Department of State, be questioned whether he left for the purpose of evading such duty. In view of the fact, however, that Richter had been informed by the Austrian authorities that he might return to the place from which he was expelled, and as he had made no further complaint, it was not deemed desirable to take up the case with the Austrian Government. Mr. Hay, Sec. of State, to Mr. Herdliska, chargé at Vienna, July 9, For paragraphs 1 and 2 of the Austrian law of July 27, 1871, regulating 6. DENMARK; ECUADOR. $ 400. Treaties of naturalization were concluded by the United States with Ecuador, May 6, 1872, and Denmark, July 20, 1872. VI. NATURALIZATION NOT RETROACTIVE. 1. GENERAL PRINCIPLES. $401. The decree of naturalization does not operate retroactively. Ex parte Kyle, 67 Fed. Rep. 306; State v. Boyd, (Neb.) 48 N. W., 739; A person who was born a citizen of Mexico, and lived on the east side of the Rio Grande, in New Mexico, at the time of the treaty of Guadalupe-Hidalgo, can not maintain an action for an Indian depredation which occurred prior to his becoming a citizen of the United States in the manner provided by the treaty. De Baca v. United States (1901), 36 Ct. Cl. 407. This case contains an elaborate discussion of the boundaries of Texas. "The change of national character subsequent to the alleged offence does not release an offender from penalties previously incurred when legally brought within the jurisdiction of the country whose laws have been violated." Mr. Marcy, Sec. of State, to Mr. D'Oench, Nov. 16, 1853, 42 MS. Dom. "When an alien who has been naturalized in the United States voluntarily returns to his native country with legal obligations contracted before he left there, the naturalization is not held to absolve him from those obligations if the government or individual to whom they may be due shall think proper to enforce them." Mr. Marcy, Sec. of State, to Mr. Vroom, min. to Prussia, No. 37, Dec. See, also, Mr. Marcy, Sec. of State, to Mr. Florence, M. C., Feb. 17, 1857, While a naturalized citizen who returns to his native country is liable, like any other person, to be arrested for a debt or a crime, he can not rightfully be punished for the nonperformance of a duty which is supposed to grow out of his abjured allegiance. An arrest of a former subject, who has become naturalized in the United States, can not be justified on the ground that he emigrated contrary to the laws of his original country. Black, At. Gen., 1859, 9 Op. 356. "It is apprehended, however, that the Moorish Government may be mistaken, if it supposes that the effect of the naturalization of the person adverted to, supposing it to have taken place, would be to weaken his liability for his debts in Morocco, even if he should return to that country. He might, in that case, be prosecuted for them in the consular court, and this Government is bound to presume that impartial justice would there be dispensed." Mr. Fish, Sec. of State, to Mr. Mathews, Oct. 23, 1872, MS. Inst. Barb. "Desertion is an offense from the penalty of which exemption by foreign naturalization is neither claimed nor conceded by the United States or, so far as known, by any other country." Mr. Bayard, See. of State, to Mr. Turner, Sept. 10, 1885, 157 MS. Dom. See, to the same effect, Mr. Bayard, Sec. of State, to Mr. Bain, April 18, While "desertion from active military service is generally regarded as not condoned by lapse of time or change of nationality," and no official action can be taken in such a case, yet, where a British subject, who deserted from the British army in his youth in 1842, afterwards became an American citizen, and served with distinction in the American civil war, attaining the rank of brevet brigadier-general, the American minister in London was instructed that he might personally present the request of the person in question for the removal of whatever disability might rest on him by reason of his desertion forty-five years before. (Mr. Bayard, Sec. of State, to Mr. Endicott, June 14, 1887, 164 MS. Dom. Let. 626.) June 17, 1887, on the Queen's Jubilee, a proclamation was issued granting pardon to all deserters from the land forces of England of more than five years' standing, provided the deserter surrendered himself within two months if at home, and within four months if abroad. A person who failed to avail himself of the terms of the proclamation remained amenable to the penalties prescribed by the laws of Great Britain in case of his return. (Mr. Olney, Sec. of State, to Mr. McDowell, June 11, 1895, 202 MS. Dom. Let. 538; Mr. Adee, Second Assist. Sec. of State, to Mr. Todd, Dec. 10, 1897, 223 MS. Dom. Let. 326.) The crime of desertion is not condoned by law or treaty and generally not by lapse of time, but a person, who deserted from the German army in 1873 and came to the United States and was naturalized, was advised that if he would prepare a petition for pardon in the German language, and send it to the imperial war office, and then send a copy to the Department of State, the American ambassador at Berlin would be instructed to support it so far as he properly might. (Mr. Hill, Assist. Sec. of State, to Mr. Whelden, June 19, 1900, 245 MS. Dom. Let. 664.) American citizenship will not exempt a person from trial in Great Britain for the offence of mutiny committed there while a subject of that country. (Mr. Bayard, Sec. of State, to Mr. Willey, April 29, 1885, 155 MS. Dom. Let. 245.) |