Mr. Dougherty to Mr. Blaine.

No. 114.]

Sir: Referring to the Department’s instruction No. 55 of May 3, 1890, and to Minister Porter’s dispatch No. 101 of July 9, 1890, I have the honor to announce that I am just in receipt of the reply of the [Page 549] Italian minister for foreign affairs to the communication of the United States minister, in which latter was presented the case of the alleged grievances sustained by one Nicolino Mileo, an Italian naturalized citizen of the United States, who declared that upon his return to Italy in April, 1889, he was arrested as a deserter from the Italian army, thrown into prison, and afterwards obliged to serve over 5 months in the Italian army despite his protest that he was a citizen of the United States, and who furthermore declared that his wife, a native citizen of the United States, was detained in this country as a hostage for her husband and was subjected to police surveillance.

I have the honor to inclose a copy of the United States minister’s letter to the minister for foreign affairs and a copy and translation of the latter’s reply.

I am, etc.,

C. A. Dougherty.
[Inclosure 1 in No. 114.]

Mr. Porter to Mr. Crispi.

Your Excellence: I have instructions from my Government to invite the earnest and early attention of Your Excellency to certain grievances of a very grave nature alleged, to have been inflicted by civil and military officers of His Majesty tbe King of Italy upon Nicolino Mileo and his wife, citizens of the United States of America.

The facts are alleged by Mileo to be as follows:

Mileo was born at Spinoso, in Italy, in January 1860, and was taken by his father, an Italian subject, to the United States in 1870. The father in 1882 returned to Italy to renew his permanent abode. The son remained in the United States, and, having subsequently complied with the provisions of its laws respecting the naturalization of aliens, became, in 1884, at the age of 23 years, on his voluntary application, a citizen of that country. From that time until now he has remained a citizen of the United States, and, according to the testimony of persons of good repute who have known him well, has conducted himself as an industrious, moral, and exemplary member of the community in which he has dwelt. He was married in the city of New York to a woman born in that city and who is a citizen of the United States.

In 1889 Mileo became, by the will of a cousin who died in that year at Spinoso, entitled to an interest in certain landed property in that town which had belonged to that kinsman. Desiring to take possession of the property that had thus been devised to him, he soon after departed with his wife to Italy. He arrived in April of that year at Spinoso, his destination. On the day after his arrival he was commanded by the mayor of the place to proceed to Potenza, a town about 30 miles distant, to report for military service. He showed to that official his certificate of naturalization and protested that, being a citizen of the United States, he was not liable to military duty. His protest was treated with derision, and, moved by threats of arrest if he did not comply with the demand, he proceeded to the place designated. He arrived at Potenza on the 22d of April, and, notwithstanding his renewed protest, he was required to strip himself naked and to undergo a physical examination, upon the completion of which, having been pronounced able for military service, he was required to put on the uniform of an Italian soldier. On the 23d of April he was taken to Alessandria, where he was consigned to prison as a punishment for having neglected to return to Italy to perform military service. For 5½ months he was compelled to serve as a soldier in Company 12 of the Eighty-sixth Regiment of Italian Infantry, at the end of which time he effected his escape, and, making his way to Genoa, took passage on a vessel destined for Zanzibar, from which he returned to the United States by way of Marseilles. He arrived in New York on the 12th of December, 1889, where he has ever since remained.

The wife, however, according to Mileo’s statement, has remained in Italy ever since, having been forbidden by the officers at Spinoso to leave for the purpose of returning to her husband, and a surveillance over her has been maintained in order that she may be kept as a hostage for his return.

[Page 550]

Dismissing from immediate consideration the question of the liability of Nicolino Mileo to military service and the harsh measure alleged to have been adopted of commanding him to report for military duty nearly at the instant of his arrival at his birthplace, and before he could have been expected to be able to give a necessary attention to the business which brought him hither or to visit the scenes or salute the friends from whom he had been so long separated, there can be little doubt that the refusal to allow the wife to return to her own country until the husband should respond for military duty would, if justified by His Majesty’s Government, be regarded an affront to the United States and a case of grave injustice to her two citizens affected by it. It would be so out of harmony with that sense of international comity, with which His Majesty’s Government has never be encharged with having been wilfully delinquent, that I hesitate to believe that there may not be in the statement of facts which has been presented some element omitted which may be found to relieve the case of its appearance of harshness. If the statement, however, shall be ascertained to be true, the confident expectation of the Government of the United States is entertained that the acts will be disavowed and the liberty of this woman will no longer be interfered with.

With respect to the case of Mileo himself, it is to be observed that, having gone to the United States when he was but 10 years old, he had not attained to the age when he could become subject to levy as a soldier in Italy, and his years were so tender that there cannot be imputed to him a purpose of having gone there to escape military duty. His partiality for the United States after his arrival was evinced by his not having returned with his father to his native country and by his having, at 23 years of age, when he had attained fully to years of discretion, become by his free choice and upon his own application a citizen of the United States. If the opinion as it has once been expressed by His Majesty’s Government were sound, that there may be instances where a person of foreign birth might, under the laws of the United States, be made a citizen of the United States without the concurrence of his own will, the case of Mileo clearly does not belong to that category. That the conditions in his case were all fulfilled before his return to Italy which entitled him to be regarded in Italy, according to her strictest standard of decision, a citizen of the United States, there can be no shadow of doubt. Nicolino Mileo is a citizen of the United States by his own competent act.

The position of the United States with reference to the treatment of a naturalized American citizen returning to the country of his origin was perspicuously stated by Mr. Faulkner, the American minister to France, in 1860, when he wrote:

“The doctrine of the United States is that the naturalized immigrant can not be held responsible, upon his return to his native country, for any military duty the performance of which had not been actually demanded of him prior to his immigration. 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 recognized. To subject him to such duty it should be a case of actual desertion or refusal to enter into the army after having been actually drafted in the service of the government to which at the time he owed allegiance.”

It would seem that the words employed by the Italian civil code which have been frequently emphasized, that “loss of citizenship does not exempt from the obligations of military service,” might, consistently with approved rules of construction, be well held to be limited to cases in which the obligations had become complete before migration. Most especially should it not, as it seems to the United States, be held applicable to cases of naturalized persons whose obligations of military service were not merely inchoate when they left. Italy, but in which circumstances repel the idea that at the time of migration an intent to defraud the Government of such services could have been entertained. And I can not persuade myself that any rule can exist which would impute to Nicolino Mileo (the circumstances of whose migration to America, naturalization, and return to Italy have been before related) such fault that he could be regarded as having been justly subjected, on his return to his native country, to immediate arrest and to the ignominious punishment applied to deserters from the Italian army.

The Government of the United States views with concern any invasion of what it deems to be the rights of its naturalized citizens. It seeks jealously to protect those rights. Nor can it be accused of having given its countenance to any methods designed to diminish the effective means of military defense of any state. How ready it has been to prevent the process of naturalization from being fraudulently perverted to such ends has been shown by the provisions of some of its recent treaties, especially those with Belgium and Austria-Hungary, treaties which, in return for a relinquishment of practices which imposed unjust hardships upon its naturalized citizens, contain provisions so effective for putting an end to evils which it is understood His Majesty’s Government seeks to terminate as to be completely satisfactory to the powers which united therein.

I avail myself, etc.,

A. G. Porter.
[Page 551]
[Inclosure 2 in No. 114.—Translation.]

Signor Damiani to Mr. Dougherty.

Mr. Chargé d’Affaires: As soon as I received from your legation the esteemed note of June 23 last, my first care was to verify, through the ministries of the interior and of war, and clearly determine the facts for which, on the assertions of Nicolino Mileo, the American Government has thought to claim.

I am now able to reply, with a simple exposition of the circumstances of fact, to the considerations advanced in the said note.

And, to proceed in the same order followed by your legation, I will state, first of all, that it is not exact that Nicolino Mileo came back to Italy with a wife born in New York and an American citizen; for the wife, named Casale Maria Gaetana, married to him in America, is a native of Spinoso; but what is then absolutely unfounded is the pretended surveillance of which she had been made the object at Spinoso and theofposition she had met to her going back to America. No authority had any motive or faculty toofpose the desire of Mrs. Mileo to return to join her husband; and this is so true that, with a regular passport issued to her by the royal prefecture of Potenza on May 6 last, she embarked the 31st of the same month for New York, together with a child named Lucy Mileo, born at Spinoso the 13th of December, 1889.

As for what concerns the military duties of Mileo, such duties arise from the explicit regulations of the Italian law, which do not exempt from military service anyone who has lost or voluntarily relinquished citizenship.

It is superfluous that I call your attention to the fact that in 1884, when Mileo acquired American citizenship, he had reached the age of 23 years, and he was already guilty of contumacy (renitenza alla leva) of the draft of those born in 1860; therefore, when he arrived in Italy and presented himself voluntarily (spontaneamente) to the enlistment bureau (consiglio di leva) in Potenza, in the session of May 22, 1889, he was declared able-bodied and enrolled iu the first category. Assigned to the Eighty-sixth Regiment Infantry, he reached the residence of the corps on the 27th of the same month, staying there until the 15th of the following November, when, having obtained a 15-days’ leave, he went to Naples, whence he fled clandestinely to the United States of America.

The military tribunal of Alessandria condemned him then in contumacy, by a sentence of April 2 last, to 18 months of military confinement for the crime of desertion with appropriation of articles of equipment.

It will therefore be seen how unfounded are the assertions of Mileo as to his ill treatment, as to his incarceration and his escape from the prisons of Alessandria, as to his flight from Genoa, and as to his having been obliged to go first to Zanzibar in order to reach the country of his adoption, for about 20 days later, say about December 12, 1889, he disembarked at New York.

The only punishment inflicted upon Mileo before the fact of his desertion was that of 1 month’s imprisonment for the offense of renitenza, which he would only have been obliged to serve at the period of the conclusion of his discharge on unlimited furlough—a comparatively slight punishment, which was accorded him precisely because he had voluntarily presented himself.

It being specious, I would have nothing to add in answer to the argument which excludes the obligation of Mileo while a minor, and which demonstrates the validity of the act by which he, when an adult, freely made the choice of American citizenship.

When he had reached the age of the conscription, Mileo should not have been ignorant of his duties (ignorantia legis neminem excusat), nor should he have declined an obligation which is born with each citizen, and which, by article 12 of the Italian code, keeps him subject to military service despite the acquisition of a new nationality, which he had moreover acquired when he already was guilty of renitenza.

Nor, in resolving a question of positive right, and which has the sanction of nearly all the European nations, avails the opinion, however respectable, of Mr. Faulkner; for, if to this conforms the doctrine professed by the United States, we should find ourselves confronted by a conflict of legislation, adjustable only in virtue of international treaties such as do not at present exist between the two countries.

It is useful for me, moreover, to show that without the formality of the oath, which Mileo could not take because he was a fugitive (renitente) and residing abroad, he was effectively inscribed on the conscription list of the Kingdom, and, in fact, enrolled; so that, even according to the principles enunciated by Mr. Faulkner, he was fully responsible for the infraction committed against the laws of his own country of origin.

Accept, etc.,

Undersecretary of State,