Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888
Mr. Pendleton to Mr. Bayard.
Berlin, June 21, 1887. (Received July 9.)
Sir: I have the honor, referring to your instruction No. 221 of the 21st ultimo, to transmit herewith a report on the limitation laws of [Page 393] Germany, relating to attachments, fines, and other penalties for the nonperformance of military duty and desertion, which has been prepared by Mr. Coleman, the secretary of this legation.
I have, etc.,
Abstract of limitation laws of Germany relating to fines, attachments to secure the same and to other penalties for the non-performance of military duty and for desertion.
I. Limitation for non-performance of military duty (in the words of the German penal code”violation of military duty
The statute declares the offense to exist in the following three cases, assigning to each its penalty:
(1) Where a person owing military duty, in order to avoid entering the standing army or navy, leaves the territory of the Empire without permission, or after having reached the age of military duty, remains without that territory without permission.
The punishment for this offense is a fine of from 150 to 3,000 marts, or imprisonment of from one month to one year.
(2) Where an officer, or a physician holding the rank of an officer of the reserve, the “Landwehr,” or “Seewehr,” emigrates without permission.
The punishment for this offense is a line not exceeding 3,000 marks, or arrest, or imprisonment not exceeding six months.
(3) Where a person owing military duty emigrates after the publication of a decree by the Emperor, issued with reference to the existence of war, or to the danger of an outbreak of war.
The punishment for this offense is imprisonment not exceeding two years and a fine not exceeding 3,000 marks.
The property of the person charged with this offense may be attached, in so far as in the opinion of the judge such course is requisite to secure the amount of the highest fine which might be imposed, together with the cost of the proceedings.
When prosecution is barred by limitation.—“Violation of military duty,” in the sense here under consideration, is denominated a misdemeanor, and prosecution for the same is barred by limitation after five years, at which time any attachment imposed on the property of the offender becomes inoperative.
Interruptions of the running of the statute.—Every judicial measure adopted against the offender on account of the offense interrupts the running of the statute, which begins to run anew after the interruption. If the commencement or the continuation of a penal proceeding is dependent upon another question which must be first decided in another proceeding, the statute ceases to run until such decision is reached.
When execution of a judgment is barred.—The execution of a judgment for violation of military duty is barred by limitation in five years.
Running of the statute and interruptions to same.—The statute begins to run with the day on which the judgment becomes valid (rechtskraftig). Every act of the authority upon whom the execution of the judgment devolves which has for its aim such execution, as well as the arrest of the offender for the purpose of such execution, interrupts the running of the statute. After the interruption in the execution of the judgment the running of the statute begins anew.
The execution of a fine adjudged concurrently with imprisonment is not barred by limitation earlier than the execution of the punishment of imprisonment is barred.
II. Limitation for desertion (Fahnenflucht).
The German military penal code (Militair-Strafgesetzbuck) declares that he who, without permission, quits the military or naval service for the purpose of permanently evading the performance of the service lawfully devolving upon him shall be regarded as guilty of desertion.
The penalty attached to the offense under varied circumstances.—1. (a) The penalty for desertion is imprisonment of from six months to two years; (b) in the case of a second offense, imprisonment of from one to five years; (c) in the case of a further repetition, penal servitude (Zuchthaus) of from five to ten years.
2. (a) The penalty for desertion committed in the field is imprisonment of from five to ten years; (b) in the case of a second offense if the former destrtion was not committed in the field, penal servitude of not less than five years; (c) and, if the desertion was committed in the field, death.
3. (a) The penalty of penal servitude or imprisonment incurred for desertion is, when committed by several persons together, upon an agreement to do so, increased [Page 394] by from one to five years; (b) in case the act was committed in the field, penal servitude, instead of imprisonment, for the same period; (c) and as against the ringleader and the person suggesting the offense, death.
4. (a) the penalty for the desertion of a sentry before the enemy or from a besieged fortress is death; (b) a deserter who goes over to the enemy also incurs the death penalty.
(It is remarked in this connection that no fines are incurred by desertion.)
Definitions contained in the military penal code based upon the degree and character of the penalties incurred for ‘desertion under the varied circumstances above stated.—1. An act punishable by deprivation of liberty (not including penal servitude) of not more than five years is denominated a military misdemeanor.
2. An act punishable by death, penal servitude, or deprivation of liberty for more than five years is denominated a military crime.
When prosecution for desertion is barred.—1. When the offense is a military misdemeanor as above defined, in five years.
2. When the offense is a military crime as above defined prosecution is barred as follows: (a) In twenty years, if the penalty is death or penal servitude for life; (b) in fifteen years, if deprivation of liberty for a longer period than ten years; (c) and in ten years, if deprivation of liberty for a shorter period.
The running of the statute barring prosecution for desertion begins with the day on which the deserter, if he had not committed the act, would have completed his lawful term of service, and is, as far as pertinent to the limitation of prosecution for desertion, subject to the same conditions as are hereinbefore stated under the head of limitation for violation of military duty.
When execution of a judgment is barred.—The execution of a judgment for desertion is barred as follows:
- In thirty years, if the penalty, adjudged is death, penal servitude for life, or confinement in a fortress for life.
- In twenty years, if penal servitude or confinement in a fortress for more than ten years.
- In fifteen years, if penal servitude of not more than ten years, or confinement in a fortress of from five to ten years, or imprisonment of more than five years.
- In ten years, if confinement in a fortress or imprisonment of from two to five years
- In five years, if confinement in a fortress or imprisonment of not more than two years.
It is remarked in conclusion that the German military penal code, from which the foregoing abstract, as far as it relates to desertion, is taken, went into effect on October 1, 1872, and thereby superseded all other military penal provisions of law affecting material rights, leaving in force only certain forms of procedure existing in individual states of the Empire.