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nation from Espain with their Government, he shall give me favour in your eyes to just that little case as a great case, and to see that justice shall be done to me.

I am, very respectfully, a citizen of the U. S. of North America,

Mr. Harris to Mr. Hay.


No. 33.]

Vienna, September 1, 1899.

SIR: In reply to your dispatch, No. 25, of the 24th of June, 1899, in the matter of Efraim Rubin, I have the honor to submit the following statement:

Mr. Efraim Rubin was born in Kolbuszowa, Galicia, on June 10, 1863. On April 11, 1886, he emigrated to the United States. He was naturalized in New York on October 23, 1891, his permanent residence being No. 45 Clinton street, New York City. By occupation he is an insurance agent. In September, 1895, he left the United States and came to his native city, where he remained some five or six months. He then went to South America for a year and returned to Europe and took a passport, No. 706, issued by the embassy at Berlin on June 10, 1897. He then returned to Kolbuszowa. A few days later, being informed privately that he was about to be arrested for failure to perform his military duties, he went to the "Bezirkshauptmann" and exhibited his passport and certificate of naturalization, and also, at the request of such officer, on July 7, 1897, made a written statement touching his citizenship, leaving his papers with the officer. Five days later Rubin called for his papers and stated he wanted to return to America. The papers were withheld, although, Rubin says, the "Bezirkshauptmann" assured him of "his perfect freedom." He was then arrested by a gendarme and delivered to the civil court of that district and held in confinement for a time, when the district attorney decided that the district court had no jurisdiction, and Rubin was turned back to the Bezirkshauptmann, who ordered him to appear before the military board at Rzeszow; which board, for some reason, at once turned him back to the Bezirkshauptmannschaft, who then released him because, under the provisions of the treaty of September 20, 1870, he was not subject to render military service. Mr. Rubin has written and visited the legation, insisting that I shall in his behalf make a claim upon the Austrian Government for damages.

He states he was imprisoned for nine days, for which he desires a demand be made of $9,000, to which shall be added $3,000 by way of solatium. I beg leave to ask instructions in this behalf.

His insistence is that, upon exhibiting his papers to the Bezirkshauptmann, he said that Rubin was not subject to military service; that he was the highest authority in that district; yet after that the inferior officers subjected him to arrest. And for this reason he claims damages.

I have, etc.,


No. 41.]

Mr. Adee to Mr. Harris.

DEPARTMENT OF STATE, Washington, September 20, 1899. SIR: Referring to previous correspondence relative to the militaryservice case of Mr. Efraim Rubin, à naturalized American citizen of Austrian birth, I have to acknowledge the receipt of your dispatch No. 33, of the 1st instant, concerning the application of Mr. Rubin for the sum of $9,000 damages on account of his arrest and imprisonment by the Austrian authorities for the nonperformance of military duty, and for the sum of $3,000 in addition by way of solatium.

In reply I have to say that it is not the practice of the Department to present claims arising out of the military arrest and detention of naturalized American citizens who return to the country of their birth. I am, etc.,

Acting Secretary.



Mr. Harris to Mr. Hay.

No. 42.]

Vienna, September 21, 1899.

SIR: I have the honor to submit the following case:

1. In 1848 a native of Bohemia, then a lad, emigrated to the United States. His surname was Eisenschimmel, but he cast this off and took the surname of Alexander, by which he was there known, as appears by his membership certificates in the Masonic and other orders.

2. On October 5, 1868, he was naturalized in one of the district courts in the State of Nevada, under the name of E. Alexander.

3. In 1872 he returned to Austria, and resumed the name of Eisenschimmel, but there is no evidence that he intended thereby to abandon his allegiance to the United States.

4. In May, 1874, he married a subject of Austria, in Vienna, where he resided continuously, with his family, until his death, which occurred in 1888. During his residence in Vienna he carried on the business of a photographer.

5. A widow and three children, issue of the marriage, survived him. They have since the death at all times resided as a family in Vienna. The children are now 22, 20, and 19, respectively.

The family have at least sufficient means to support them comfortably, but no part of the estate is in the United States, unless a few shares of stock in a mine be so considered, and that is for sale.

Mr. Alexander never returned to the United States after his arrival here in 1872, and no member of his family has ever been in America. 6. His widow, Elenore Eisenschimmel, now applies to this legation for a passport, and exhibits a passport, numbered 714, issued herein on September 28, 1896, and states that she was then told that when that expired she would be entitled to another.

I am entirely satisfied as to the identity of her husband. I shall not

question the fact that, at the time of the marriage, the husband was a citizen of the United States, for there is no evidence that he then had the intention of abandoning his adopted nationality. It would seem to follow, therefore, under section 1994, Revised Statutes of the United States, that by the marriage the wife ipso facto became also a citizen of the United States.

Whether this status of citizenship continued to exist at the times the several children were born, so that they may, on coming of age, elect to be citizens of the United States, is not present for consideration. The only question is whether Mrs. Elenore Eisenschimmel is entitled to a passport.

I have declined to grant one. The grounds may be summarized as follows:

First. The continuous residence in Vienna by the husband from the marriage to his death a period of fourteen years-tends strongly to show that he had abandoned his allegiance to the United States, and that her status, under the circumstances, followed her husband. They had at all times ample means to enable the family to go to America. The only reason now put forward to meet this presumption is that their parents were living in this country, and both the husband and the wife wished to be with them.

Second. The conduct of the applicant since the death of the husband tends to the same conclusion. She had the means at command, on becoming the head of the family, to go to the United States. She elected to remain here, and educate the children in the schools and under the influence of this Monarchy.

Third. In her previous verified application for a passport she stated that she would, within two years, go to the United States and perform her duties of citizenship. She is unable to give a substantial reason for the failure to observe this obligation. That put forward is that she did not want to take the children from their schools in Vienna.

Under these circumstances it would seem to encourage bad morals, if not worse, to condone the breach and issue a second passport. Mrs. Eisenschimmel is an educated and cultivated woman, and I told her at the time of declining to issue the passport that I would submit my action to you for review and instructions.

This case affords the opportunity to say that I find it not uncommon for native-born subjects of this Monarchy to emigrate to and become naturalized citizens of the United States, and then return to this country and biennially renew their passports, making at such times the declaration of intention to return to and assume the duties of citizenship in the United States, which is not kept. It seems to me this practice ought to be broken up. If such intention is not fulfilled during the life of a passport, I submit, another should not be issued until this legation is satisfied that there was good reason why the holder of the passport did not return to the United States; and also further satisfied that the applicant intends, in good faith, if given another passport, to keep the obligation and return. It also appears to me that in such cases the second or other subsequent affidavit is not conclusive; but the legation may and should make further investigation and act upon the whole case.

I will be pleased to receive specific instructions in this regard.

I have, etc.,


No. 44.]

Mr. Hill to Mr. Harris.

DEPARTMENT OF STATE, Washington, October 14, 1899.

SIR: I have to acknowledge the receipt of your dispatch No. 42, of the 21st ultimo, reporting your refusal to issue a passport to Mrs. Elenora Eisenschimmel.

The Department approves your action in the matter.

Your remarks in reference to applicants for passports who fail to fulfill their declared intention to return to the United States are very sensible and indicate the proper course to be followed in such cases. I am, etc.,

Acting Secretary.


Mr. Harris to Mr. Hay.

No. 44.]

Vienna, September 29, 1899.

SIR: I beg to report that I have this day cancelled passport No. 25, issued by this legation to John Wilson on June 6, 1899.

He made personal application for this passport, produced his passport No. 284, issued to him by the embassy in Paris on September 27, 1898, which he surrendered (and is now on file in the Department of State), swore he was born and still resided in Virginia City, Nev., and that he desired the passport for Russia. He also produced other papers which seemed to prove his citizenship and identity, but which were returned to him at the time.

Shortly afterwards he was arrested at Lemberg for violating some of the provisions of the criminal code, and wrote to this legation for assistance and protection. The idiomatic character of these letters led me to doubt that he was a native-born American, and I wrote the authorities having him in arrest to hold his passport until I could investigate the question.

It appears that in Paris he swore he was born at Bloomington, Ill., and resided at Brooklyn, N. Y., while the officers of the court at Lemberg write, under date of September 21, that Wilson now states he was born in Chicago. They also add that this same man, under the name of Julius Wilson, alias John Walker, alias Jules Barden, alias Julius Walker, was, on February 11, 1887, in the criminal court in Vienna, convicted of the crimes of fraud and theft, sentenced to one year's imprisonment and to exile from Austria; nevertheless he has returned and is held and will be tried for other offenses against the criminal code.

On the 14th instant, I sent by registered post a letter to Wilson, asking for an explanation of the contradictory statements found in his applications, as above shown, but have received no answer.

The canceled passport which was taken from Wilson by the district court at Lemberg and which, upon my request, was returned to this legation, is herewith inclosed.

I have, etc.,


Mr. Harris to Mr. Hay.

No. 45.]

Vienna, September 30, 1899.

SIR: I beg to supplement dispatch No. 44, concerning John Wilson, by stating:

The legal authorities at Lemberg write that they desire the legation to turn over to them the papers on file here, in order that they may prosecute Wilson under the Austrian law for fraud.

By the law of the monarchy it is a crime to have a document fraudulently obtained for use in one's possession.

I have no doubt that Wilson might be put on trial in some district court of the United States under section 1750, Revised Statutes United States, as the application at Paris, or here, is perjury, and perhaps both are. It will be noticed in his application for a passport in Paris he stated he took a former one at Cairo. It might be well to examine that application.

The Austrian authorities do not claim that they have jurisdiction to punish perjury committed in this legation, but that the crime is for having a passport in possession fraudulently obtained.

I hesitate to give the papers over without direction to do so, especially as they will be needed if you determine to proceed under

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SIR: I have to acknowledge the receipt of your dispatch No. 45, of September 30 last, stating that the Austrian authorities at Lemberg request you to turn over to them the papers on file in your legation relating to John Wilson's passport in order that they may prosecute him under the Austrian law against fraud, the fraud in question consisting in Wilson's having in his possession for use a document fraudulently obtained.

You request to be instructed in the matter.

In reply I have to say, as Wilson is in Austria it is impossible to try him in the United States under section 1750 of the Revised Statutes, to which you refer, or under any other section.

Perjury is not one of the offenses included in our extradition treaty with Austria, and even if it were, this Government could not demand his extradition for an offense committed in Paris or Vienna.

If a foreign court, in its endeavor to convict a person of the offense of possessing a psssport said to have been obtained by fraud, can adjudge whether the passport was rightly or fraudulently obtained, it could, in like manner, assume to pass upon the legality of an act of naturalization, an assumption that we have always strenuously contested.

In view of the aforegoing, I can not authorize you to assist the Austrian authorities in the prosecution of Wilson. JOHN HAY.

I am, etc.,

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