Mr. Wharton to Mr. Dougherty.
Washington, September 19, 1890.
Sir: Your dispatch No. 114 of the 1st instant, in relation to the case of Nicolino Mileo, has been received.
The reply of Signor Damiani, under secretary of state, to the representations Mr. Porter was directed to make in respect to the imprisonment inflicted on Mileo and the obstacles encountered by Mileo’s wife in seeking to quit Italy has been read with interest. It is observed that Signor Damiani, while declaring the assertions of Mileo “unfounded” as to his ill treatment and incarceration, admits that prior to his desertion he underwent 1 month’s imprisonment at Alessandria for the offense of renitenza. This was, in fact, the incarceration complained of, and preceded, as Mr. Porter’s note distinctly shows, the 5½ months of military service in the Eighty-sixth Regiment. It is not, therefore, clearly seen how the allegation in this regard is unfounded. This Government can not but regard such punishment as harsh and inequitable when imposed on a citizen of a friendly state who quitted the Kingdom of Naples while a child of 10 years and long before military service could accrue. In the relation of states a practice has become established—and is in some instances defined and confirmed by convention—by which military punishment is only inflicted for desertion after actual enrollment in the ranks. Delinquency after being enrolled in the lists of persons from whom, by subsequent process of conscription, the ranks may be recruited (in a word, contumacy) is very generally regarded as not entailing punishment for desertion; and the practice of Italy to so punish it, as announced by Signor Damiani, is exceptional so far as our experience goes. We are not unmindful of the fact that Signor Damiani rejects the usage to which we appeal, because not confirmed by international treaty; neither are we unmindful of the circumstance that the United States have for many years urged Italy to conclude a treaty in regulation of this state of things, concerning which we have so frequent cause to remonstrate. To claim a naked right in virtue of the nonexistence of a treaty does not meet the patient and friendly expostulations of this Government, nor can such a claim induce us to desist from urging that the rights of citizens of either in the jurisdiction of the other should be defined as befits the long-existing amity of the two countries.
Signor Damiani declares to be absolutely unfounded the pretendedofposition encountered by Mrs, Mileo to her going back to America. “No authority,” he says, “had any motive or faculty to oppose 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 on the 31st of the same month for New York, together with a child named Lucy Mileo, born at Spinoso the 13th of December, 1889.”
This Department is much gratified to possess this confirmation of its conviction that the Italian Government could not intend to hold Mileo’s wife as a hostage for her deserting husband’s return. The late date, however, at which Mrs. Mileo’s passport was granted by the prefecture at Potenza does not appear to be wholly inconsistent with the statement that her repeated endeavors—begun before the birth of her child—to obtain permission to depart had met with refusal from the authorities of Spinoso.
The allegation that Mrs. Mileo’s application for a passport had been [Page 553] denied is contained in the affidavit of Nicolino Mileo, executed at New York, January 7, 1890, 4 months before the permission was actually accorded; and for this delay Signor Damiani’s note suggests no explanation—an omission which he will doubtless cheerfully make good.
I am, etc.,
Acting Secretary.