Francis to Baron Pasetti, October 28, 1884

Mr. Francis to Baron Pasetti.

Your Excellency: Referring to my interview with your excellency, yesterday afternoon, relative to an American citizen, one Louis Feinknopf (Leibel being the Hebrew rendering of the name Louis), who has been notified by the military authorities at Krakau to report for service in the Austrian army, I have the honor to submit the facts in the case for the consideration of your excellency.

Leibel (or Louis) Feinknopf was born at Krakau on the 2d of January, 1860. His father, Markus Feinknopf, died many years ago. His mother, a widow, still resides at the old home in Krakau. In September, 1876, being then sixteen years of age, Leibel (or Louis) Feinknopf emigrated to the United States, no one of his family accompanying him. Nearly six years thereafter—his residence being continuous in that country from the period of his arrival there—he was naturalized and declared to be a citizen of the United States, by the district court of the United States for the southern district of Ohio, on the 3d of April, 1882.

On Monday, October 20, Leibel (or Louis) Feinknopf arrived at his native place (Krakau) from America, for the purpose of visiting his mother and other relatives. On the 23d of October he was notified by the military authorities at Krakau to appear and report for service in the Austrian army. He answered the summons, protesting, however, that as an American citizen he owed no such service, and requesting that he be permitted to visit Vienna to confer with the United States minister there in a matter so vitally affecting his rights.

The permission was promptly granted, and Feinknopf reported tome at this legation, yesterday morning, October 27.

I have presented to your excellency, in brief, a statement of the facts in this case. The question now recurs, can the American citizen Feinknopf be properly held for service in the Austrian army?. I think the treaty of 1870 between the United States and Austria-Hungary should settle this question. Article I, of that treaty, reads as follows:

“Citizens of the Austro-Hungarian monarchy, who have resided in the United States of America uninterruptedly at least five years, and during such residence have become naturalized citizens of the United States, shall be held by the Government of Austria and Hungary to be American citizens, and shall be treated as such.”

It will be conceded, I think, that Feinknopf has met all the conditions for admission to American citizenship above set forth, and must therefore be recognized as a citizen of the United States under the terms of Article I of the treaty.

But being an American citizen can he still be held for military service in his native country? In answer to this, the vital question in the case, I beg leave to call your excellency’s attention to Article II of the treaty:

“In particular, a former citizen of the Austro-Hungarian monarchy, who, under the first article, is to be held as an American citizen, is liable to trial and punishment, according to the laws of Austro-Hungary, for non-fulfillment of military duty.

• “(1) If he has emigrated after having been drafted at the time of conscription, and thus having become enrolled as a recruit for service in the standing army.
• “(2) If he has emigrated whilst he stood in service under the flag or had a leave of absence only for a limited time.
• “(3) If, having a leave of absence for an unlimited time, or belonging to the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out.”

“On the other hand, a former citizen of the Austro-Hungarian monarchy, naturalised in the United States, who by or after his emigration has transgressed the legal provisions on military duty by any acts or omissions other than those above enumerated in the clauses numbered 1, 2, and 3, can on his return to his original country neither be held subsequently to military duty nor remain liable to trial and punishment for the non-fulfillment of his military duty.”

It does not appear that Leibel (or Louis) Feinknopf “has transgressed the legal provisions on military duty by any acts or omissions enumerated in the clauses numbered 1, 2, and 3; and this being conceded he cannot be held here (quoting the language of the treaty) to military service nor remain liable to trial and punishment for non-fulfillment of his military duty.”

In this connection the undersigned begs leave to call your excellency’s attention to a case almost exactly similar to this one, which was presented by Mr. Phelps in a note from this legation to His Excellency Count Kalnoky, F. O. No. 23, of the date of June 3, 1882, and the reply thereto by Count Szögyényi for the minister of foreign affairs, 18637/7 dated October 6, 1882, wherein it is announced that the sentence passed upon the persons named, Leeb and Jacob Mörser, American citizens, has been repealed, and that they were discharged, their case coming under the provisions of Article II of the treaty of September 20, 1870, by which they were exempted from military service in the Austrian army.

Your excellency will observe by reference to this case as above that the decision arrived at applies to the one to which I now urgently call your attention.

The undersigned claims in behalf of Leibel (or Louis) Feinknopf exemption from military service in the imperial royal army under the provisions of the treaty of September 20, 1870, and respectfully requests that instructions be communicated by the Government of his Imperial Majesty to the military authorities at Krakau to discharge the said Feinknopf from arrest and discontinue all proceeding intended to exact from him service in the Imperial Royal army.

The undersigned avails, &c.,