Mr. Blaine to Mr. Porter.
Washington, May 3, 1890.
Sir: I have to call your attention to the complaint of Nicolino Mileo, a naturalized citizen of the United States, against the Government of Italy, alleging harsh punishment on a charge of evasion of military service and interference with the personal freedom of his wife, Gaetaua Mileo, who is stated to be prevented from quitting Italy to rejoin her husband in this country.
Two affidavits, competently executed by Nicolino Mileo, are herewith transmitted in copy. The good character of the deponent and his general reputation for veracity are attested by several worthy persons in whose employ he was during his long residence in the United States, and copies of their statements are also appended.
It appears from the complainant’s affidavits that he was born at Spinoso (in the province of Basilicata?) in January. 1860; that in 1870, being then but 10 years old, he was brought to the United States by his father, Francisco Mileo; that since that date he, Nicolino Mileo, has been domiciled in New York, where he has been engaged in business for 15 years past; that he was married in New York; that his wife, Gaetana, was and is a citizen of the United States; and that he was duly naturalized before the court of common pleas of New York on September 16, 1884, when over 23 years of age. His father, Francisco Mileo, is further stated to have resided in the United States for some 12 years, during which time he declared his intention to become a citizen of the United States; but it appears that he, the father, returned to Italy to reside in 1882, when the son was over 21 years of age and consequently sui juris.
It further appears that sometime prior to April 1, 1889, one Albino Calasa, a cousin of the complainant and an Italian subject, died, leaving to the complainant by his will certain real estate situated at Spinoso; and on that date, Nicolino Mileo and his wife set sail for Italy to take possession of this property. They arrived at Spinoso on the 17th of April. On the following day Mileo was ordered by the mayor of that place to go Potenza, 30 miles distant, to report for military service. He showed to that official his certificate of naturalization and claimed immunity from military service on the ground that he was a citizen of the United States, but was told—it is alleged in obscene language—that this paper was of no value, and that if he did not obey the order he would be arrested. Moved by this threat, he consented to go. He arrived at Potenza on the 22d of April, and, despite his protests and claim of American citizenship, he was compelled to strip and undergo a physical examination. Being declared able to serve, he was dressed in the uniform of an Italian soldier. On the 23d of April he was taken [Page 537] to the city of Alessandria, where he was confined for 30 days in jail, under circumstances, as alleged, of great hardship, as a punishment for his failure to return to Italy to perform military service. He was thereafter compelled to serve for 5½ months in company 12 of the Eighty-sixth regiment of infantry of the Italian army. At the close of that time, having obtained leave of absence, he went to Genoa and left Italy on a vessel bound for Zanzibar, from which place he returned to the United States by way of Marseilles.
He now alleges that the Italian authorities will not permit his wife to come to him and threaten to detain her in Italy until he returns thither. This allegation is so extraordinary and so repugnant to the principles of justice that this Government hesitates to believe it. The whole case calls for the prompt and thorough investigation which you are hereby instructed to ask; and in doing so you will state the confident expectation of this Government that, should the allegations of the complainant be substantiated as to the cruel imprisonment to which he was subjected, and as to the detention of Mileo’s wife as a hostage for her husband’s return, the action of the Italian authorities will be disavowed and the liberty of this woman, who is stated to be a native citizen of the United States, as well as the wife of a citizen, will no longer be unjustly interfered with.
The claim of the Italian Government with respect to the continuance of obligation of military service notwithstanding the loss of Italian citizenship has been frequently made known and is well understood here. A mass of correspondence on this subject is on file in your legation, and I need only advert to the cases of Sbarbaro in 1871, of Biaggotta in 1872, of Largomarsino in 1877, and of Gabriella in the same year. The case on the part of Italy is understood to rest on article 12, book i, of the Italian civil code, which reads:
12. Loss of citizenship in the cases stated in the preceding article does not exempt from the obligations of military service, nor from the penalty inflicted on anyone who bears arms against his native country.
The preceding article 11 provides, in its second paragraph, that Italian citizenship is lost—
(2) By naturalization in a foreign country.
This provision fully meets the case of Mileo. Brought to this country at the age of 10, he was duly naturalized here at the age of 23, and he resided here continuously for 19 years until last year, when he was 29 years of age. The case is therefore uncomplicated by any question as to the effect of his father’s nonrenunciation of Italian citizenship and subsequent return to Italy in 1882, when, as has been seen, he left his son, then sui juris and domiciled in the United States, here to perfect his naturalization under our laws. Eicolino Mileo is a citizen of the United States by his own competent act.
As to the question of subjection to Italian military service, a distinct conflict of jurisdiction exists between the two Governments. The position of our Government in this regard and with reference to the treatment of a naturalized American citizen returning to the country having a conflicting claim upon him by reason of his own origin was well stated by Mr. Faulkner, our minister to France in 1860, when he wrote:
The doctrine of the United States is that the naturalized emigrant can not be held responsible upon his return to his native country for any military duty, the performance of which has not been actually demanded of him prior to his emigration. A prospective liability to service in the army is not sufficient. The obligation of contingent duties depending upon time, sortition, or events thereafter to occur is not [Page 538] recognized. To subject him to such responsibility it should be a case of actual desertion or refusal to enter into the army after having been actually drafted into the service of the Government to which at the time he owed allegiance.
This principle has been practically recognized and specifically affirmed in the various naturalization treaties which the United States have concluded with foreign powers, and even with respect to states holding the doctrine of perpetual allegiance, which the Italian code rejects. It is not believed that the Italian Government claims rights over returning naturalized citizens in essential conflict with our position. It is understood to claim the personal fulfillment of an obligation accruing and complete when the party was still subject to Italian jurisdiction, and to claim the right to punish actual desertion or the refusal to serve when actually conscripted. This latter right of punishment, thus limited and defined, is conceded, be it remarked, by the United States in their naturalization treaties, as witness our treaty of September 20, 1870, with Austria-Hungary, article 2.
When Nicolino Mileo was taken away from Naples by his father at the age of 10, no liability to military services had accrued against him. He was at that tinie a subject of Ferdinand II, king of the two Sicilies. Had he remained, adopting the fortunes of his native State and becoming a citizen of Italy upon the annexation of Naples to Sardinia on December 17, 1870, he would, on attaining the prescribed age, have been liable to conscription, and, if drawn and found able, to service in the ranks. Because this triple liability in the distant contingencies of the future may have rested on him in an inchoate form at the age of 10, it can not be admitted that this indeterminate responsibility so followed him through his voluntary adoption of a foreign citizenship as to render him liable, 19 years afterwards, to punishment as a malefactor for nonfulfillment of a positive obligation.
There may perhaps be room to maintain a distinction between the punishment of Mileo for a constructive offense and his enforced subjection to military service after he had returned to Italy and had been held personally liable and found physically able to serve. In the latter case a positive conflict of jurisdiction arises, and the action of the Italian authorities in forcing into their ranks a man whose status as a citizen of another State is unquestionable calls now, as on previous occasions, for earnest dissent and protest. It is greatly to be regretted that Italy stands aloof from our repeated proposals to adjust the question by treaty on bases which have in practice through conventional agreements become the measure of international claim and concession in this regard between many of the most important nations of the earth. In this relation, it may be proper to recall to your attention the language employed by Mr. Fish, when Secretary of State, in his instruction to Mr. Marsh, No. 361, of November 15, 1872:
The feeling in the United States, as you are aware, is very strong against compulsory military or naval service of naturalized citizens in countries where they were born. This sentiment tbe Government would be bound to respect. Cases of the kind frequently occurred with the German States prior to the naturalization treaties with them. Since then, however, it is believed that no difficulty upon the subject has happened. It is a matter of regret, in the interest of friendly relations with Italy, that she should have declined our overtures for a similar convention.
I may add that it is unfortunate that by its attitude in this regard Italy should be put in the erroneous position of appearing to cling to the now very generally abandoned doctrine of perpetual allegiance, a dogma alike contrary to her enlightened policy and expressly rejected by her national code.[Page 539]
As for the allegation that Mrs. Mileo is deprived of her personal freedom and coerced into remaining in Italy, the charge is so incredible that, without fuller knowledge on the subject, it is not possible to instruct you further than to make instant and earnest protest should the fact be established. Whatever may be the charges laid at the husband’s door, no theory of law is known by which the wife can be vicariously proceeded against or be held as a hostage for the husband’s appearance. I prefer, however, to believe that the statement is either without foundation or rests on some misconception which the Italian Government can and will at once remove by recognizing in favor of this American woman the right she claims to quit Italian territory at will.
I am, etc.,