Mr. Olney to Mr. Peirce.
Washington , June 15, 1895 .
Sir: Mr. Breckinridge’s No. 74, of the 18th, and your Nos. 81 and 85, of the 27th and 30th ultimo, in relation to the arrest of John Ginzberg, have been received. The minister’s action in anticipating the Department’s instructions, Nos. 50, of May 3, and 54, of May 15, on the same subject, upon information received by him from the United States consul at Hamburg, is appreciated, and your attention to the case is approved.
In reading the voluminous correspondence now sent hither, an important conflict is observed between the statements on behalf of the arrested man and those communicated to Mr. Breckinridge by Mr. Chichkine, as having been furnished by the governor of Minsk. It is expressly said by the latter that Schimon (otherwise called John) Ginzberg deserted the military service in 1886 by taking refuge in America, and after having been fully identified he was, upon the governor’s order, turned over to the judicial authorities in virtue of the laws applicable to the crime of desertion.” On the other hand, in the application of John Ginzberg, upon which passport No. 17003 was issued him October 8, 1894, he swears he was born at Minsk on or about September 4, 1865, and emigrated, sailing on the Hammonia from Hamburg on or about the 7th day of July, 1880, subsequently becoming naturalized in Wilmington, Del., August 10, 1886.
It is obvious that the military offense of desertion could not have been committed by this boy of less than fifteen years of age when he quitted Russia in the early part of 1880; and the fact that the governor of Minsk specifies as the date of the alleged desertion the year in which Ginzberg was duly made a citizen of the United States, in pursuance of our laws, raises a presumption that the so-called act of “desertion” for which Ginzberg is to be tried may in fact be his acquisition of American citizenship. If this be so, the Government of the United States can never acquiesce in any claim of any other government to penalize the act of naturalization when lawfully granted within our jurisdiction to one of its former subjects or citizens.
Actual desertion from service is universally regarded as a continuing offense, condoned neither by lapse of time nor change of citizenship, and were this proved in the present case you would have practically no ground for remonstrance against the punishment of Ginzberg as such a deserter; but, as already remarked, a child of 14 can not be a deserter in this military sense; nor is it reasonable to suppose that any man with the well-known penalties of actual desertion from active service hanging over him would have so persistently endeavored to reenter Russian jurisdiction as Mr. Ginzberg has done.[Page 1092]
It is, however, probable, in view of Baron Osten-Sack en’s conclusion that the facts of the case warranted his addressing a note to the minister of justice recommending Ginzberg’s release, that actual desertion from the ranks does not figure in the case.
Should the action of the foreign office not bring about a favorable result, it may be necessary to press the case on the ground that the punishment of a naturalized person for the mere act of becoming a citizen of the United States by due operation of our laws is inadmissible and unfriendly.
Before presenting the case positively on this ground, it may be well, however, to put John Ginzberg’s right to protection as an American citizen beyond all doubt. The circumstances of his application for a passport disclose an irregularity which may or may not be vital.
A copy of John Ginzberg’s application for a passport, made October 4, 1894, before one Moritz Silberstein, a notary public of New York City, was sent to the legation with Mr. Uhl’s No. 54, of May 15. It will be observed that Ginzberg therein swears that he was born at Minsk, Russia, on or about the 4th day of September, 1865, and was naturalized before the circuit court of the United States at Wilmington, Del., on the 10th of August, 1886—that is, twenty-five days before attaining legal age. As the date of birth is only approximately given, this apparent defect may be removed upon production of a copy of his certificate of birth.
Mr. Lewis, who wrote to the Department on the subject, will be informed of what you have done and of your interest in the matter, in addition to the information you have already directly given to him in your letter of May 10.
I am, etc.,