Mr. Tripp to Mr.
Olney.
United
States Legation,
Vienna, October 1, 1896.
(Received Oct. 16.)
No. 208.]
Sir: I have the honor to report herewith the
very interesting case of Ladislao Sedivy, which has been pending for
some time and is just now very favorably concluded.
The case, as you will observe, involved the delicate question of how far
the Austrian Government had the right to punish as a deserter a
returning American citizen of Austrian birth who had performed his
active military service before emigration, but who was at the time of
emigration upon the reserve list and liable to call into active service
at any time. It has been contended by the military authorities of
Austria-Hungary that all members of the reserve corps are absent from
the army on furlough merely, and that any willful absence from the
country, including emigration, so that they be unable to respond to any
call for active service, makes them deserters so that they can be
punished as such; and the minister of foreign affairs, in my first
conversation with him, was himself inclined to take this view of the
question. As the same question had already arisen in a number of cases,
and was liable to frequently arise, owing to the very great number of
Austro-Hungarian citizens who have emigrated to America after having
performed their active military duty and while their names yet remained
on the reserve list, I determined to make this a test case, with the
result, as you will observe, that the foreign office here has tardily
conceded the position I have taken in the matter, to wit, that a
returning American citizen of Austro-Hungarian birth can not be punished
for a crime committed by act of emigration, but only for an offense
committed before emigration, and that in all cases when the member of
the reserve corps emigrated before receiving a call into active service
he was guilty of no crime against the military laws of Austria-Hungary,
and was not subject to arrest upon his return, nor to punishment as a
deserter; that the crime for which the Austrian courts got jurisdiction
of the returning citizen was a failure to obey the summons served upon
him before emigration. This position is now, as will be observed,
conceded, and the military court was directed to confine its inquiries
to the question whether Ladislao Sedivy did or did not receive summons
calling him into active service before his emigration; and the court
having found that he did not, he was accordingly discharged.
The case is a valuable one as a precedent, and determines a number of
cases already pending before the legation.
I have, etc.,
[Inclosure 1 in No.
208.]
Mr. Tripp to
Count Goluchowsky.
United States Legation,
Vienna, December 30,
1895.
Your Excellency: Complaint has been made to
this legation by Ladislao Sedivy, a naturalized citizen of the
United States, that he has been arrested in Josefstadt, has been
enrolled in the seventy-fourth [Page 7]
regiment of infantry, tenth company, and is now held for military
duty at that place.
Mr. Sedivy sends to the legation his certificate of naturalization, a
copy of which is herewith submitted for consideration, which is in
proper form, and from which it appears that L. Sedivy was duly
naturalized a citizen of the United States before the county court
of Jefferson County, in the State of Kentucky, on October 5,
1892.
Mr. Sedivy also sends to this legation his passport, No. 4089, which
was in due form, issued to him on the 25th day of September, 1895,
by the Secretary of State, at Washington, a copy of which is also
submitted herewith.
Your excellency will agree with me that under no circumstances can
Mr. Sedivy, as a naturalized citizen of the United States, be held
liable to such military duty under the treaty existing between
Austria-Hungary and the United States, and I trust that your
excellency will see that the necessary orders are immediately issued
for his release and for the cancellation of his enrollment in the
army of Austria-Hungary.
Thanking your excellency for the prompt and efficient action which
has always characterized the conduct of the ministry of foreign
affairs in the matter of complaints made by citizens of my country,
permit me to take this occasion to renew, etc.,
[Inclosure 2 in No.
208.]
Mr. Tripp to
Count Goluchowsky.
United States Legation,
Vienna, February 7,
1896.
Your Excellency: On the 30th of December
last, by my note numbered 117, I called the attention of your
excellency to the case of Ladislao Sedivy, a naturalized American
citizen, who, as I was then informed, had been arrested at
Josefstadt, in Bohemia, in which note I set forth the facts of the
arrest and detention so far as they were then known at this
legation, and accompanied my note with a copy of the certificate of
naturalization of Mr. Sedivy and of his passport, both of which were
in the possession of this legation, and asked for the immediate
interposition of the imperial and royal ministry of foreign affairs
of Austria-Hungary in behalf of Mr. Sedivy and for his immediate
discharge from arrest and imprisonment, if the facts were found in
accordance with the statements contained in my note and the
complaint made to this legation.
I further took occasion to visit your excellency in person and to
personally call attention to this case, and to ask to be favored at
the earliest moment with a copy of the charges made against this
man, and to be informed of the cause of his arrest and detention. I
have, however, received no reply from your excellency nor from any
official source, but am privately informed that during the time
which I had been seeking to intervene in behalf of Mr. Sedivy he has
been tried by some tribunal and sentenced to a month’s imprisonment
for some crime alleged to have been committed before his
emigration.
I am sure that some mistake must exist in reference to this matter,
and I am quite unwilling to believe that after my intervention Mr.
Sedivy would have been tried and condemned and sent to prison in
execution of sentence without some notification to me of such
purpose [Page 8] and intention on the
part of the Government of Austria-Hungary. I am, therefore,
constrained, in view of the apparent reliability of the information
in reference to the sentence and imprisonment of Mr. Sedivy, and
having ever in mind the continued courtesy with which all my
applications have uniformly been received and treated by your
excellency, to ask the earliest possible attention of the ministry
of foreign affairs to this matter, to the end that a speedy
determination of this case may be had and that Mr. Sedivy, who is
reported to me to be in poor health and who has been already over
two months in prison, may be at once released, and if it be true
that he has been tried and condemned without notice and pending the
intervention of this legation, that I be favored at once with a copy
of the minutes of the procedure, the evidence presented, together
with the findings and judgment of the court.
Regretting the necessity which obliges me to again call the attention
of your excellency to this case, I avail, etc.,
[Inclosure 3 in No.
208.—Translation.]
Count Welsersheimb to Mr. Tripp.
Vienna, February 12,
1896.
Sir: As a temporary reply to the esteemed
note of the 7th of February, No. 121, the ministry of foreign
affairs has the honor to inform the honorable minister of the United
States that the investigations made by the ministry of foreign
affairs on receipt of the note of December 30, 1895, No. 117,
relative to the arrest of the naturalized American citizen, Ladislao
Sedivy, and the reasons for such proceeding, have not yet been fully
brought to a close.
Inasmuch, however, as it has been learned from the information so far
received that Ladislao Sedivy has been held to answer a charge for a
criminal act committed by him and provided for in Article II of the
treaty of September 20, 1870, justifying the authorities of his
native home to proceed against him, even if in the meantime he has
legally acquired American citizenship, the undersigned, pending
further investigations, will make known the result to the honorable
minister of the United States as soon as the same has been
communicated, and he avails himself, etc.,
Welsersheimb, For the Minister.
[Inclosure 4 in No.
208.]
Mr. Tripp to
Count Goluchowsky.
United States Legation,
Vienna, February 15,
1896.
Your Excellency: I have the honor to
acknowledge the receipt of the very kind and polite note of date
February 12, 1896, from the ministry of foreign affairs in reference
to the case of Ladislao Sedivy, and I thank your excellency very
much for the attention and consideration which my former note, No.
121, of February 7, 1896, has received, but I note with some feeling
of surprise a confirmation of the fact unofficially communicated to
this legation that the local authorities at Josefstadt have taken
jurisdiction of the offense alleged to have been [Page 9] committed by Mr. Sedivy against the laws
of Austria-Hungary under the treaty of September 20, 1870, and have
assumed to try and convict him of an offense apparently committed by
and not before his emigration.
I shall await with anxious interest the result of the investigation,
which I am informed by your excellency’s kind note has been
instigated by the ministry of foreign affairs, for, it would seem to
me, there can be little room for doubt or question that the treaty
of 1870 does not and can not contemplate a case in which the
returning naturalized American citizen, a former Austrian subject,
can be punished for an offense committed by the act of emigration.
Such a construction would defeat the very purpose of the treaty
itself. It would in effect destroy the right of expatriation
expressly granted in Article I of the same compact, for, unless the
emigrating citizen may have the privilege of returning again to his
native country, his emigration becomes an exile, and to his
certificate of naturalization granted by his adopted country there
is appended, by such construction, a decree of perpetual banishment.
Such a construction of this convention is not worth consideration in
the absence of any claim previously made that its language will
admit of such perversion.
Article II of this treaty is entirely consonant with and not in
contravention of the clear enunciation of the right of expatriation
of the citizens of either country provided for in Article I.
It is a grant of additional rights, not a limitation of the rights
already granted.
It provides for the cases in which the naturalized citizen of either
country, returning to his native country, may be punished for
offenses previously committed, but expressly reserving to him all
laws of limitation and remission from liability to punishment, and
expressio unius est exclusio alterius, for, when the treaty-making
powers have chosen to agree upon what particular crimes or in what
particular cases punishment shall be inflicted upon former citizens
of either country, they necessarily by such enumeration exclude all
others not therein enumerated.
When, therefore, the high contracting parties here chose to say that
the Governments of Austria-Hungary and the United States should have
the power to punish the returning native subject for offenses
committed before his emigration, they said in equally plain language
they shall not have the power to punish him for offenses committed
by the act of emigration.
This is believed to be too plainly and admittedly the construction of
this not unusual language of treaties to demand any elaboration, and
it must be contended by this legation that this construction is not
weakened and made in any way doubtful by the succeeding clause,
which provides:
In particular, a former citizen of the Austro-Hungarian
Monarchy, who under the first article is to be held as an
American citizen, is liable to trial and punishment,
according to the laws of Austria-Hungary, for nonfulfillment
of military duty:
- First. If he has emigrated, after having been
drafted at the time of conscription, and thus having
become enrolled as a recruit for service in the
standing army.
- Second. If he has emigrated while he stood in
service under the flag, or had a leave of absence
for an unlimited time, or belonging to the reserve
or to the militia, he has emigrated after having
received a call into service, or after a public
proclamation requiring his appearance, or after war
has broken out.
There is no apparent purpose on the part of the high contracting
parties thereby to limit what has already been made the subject of
the two important articles agreed upon, but the introductory words
of the additional clause, “In particular,” indicate the clear
intention of thereby explaining and not of limiting their plain
signification.
[Page 10]
The plainest legal rules of construction, therefore, require that
these subsequent provisions must, if possible, be construed in
consonance with and not in contravention of the preceding general
provisions to which they are attached.
Bearing this rule of construction in mind, we are at once led to the
conclusion that Austria-Hungary, as one of these great contracting
powers, did not wish to leave to future doubtful construction the
fact that certain military crimes were intended to be included
within the general provision of Article II, a construction which
might not be given to the general provision of Article II standing
alone, and in granting this concession on the part of the other
contracting power it is equally evident that she was unwilling to
extend such right to all military crimes, and the military crimes
punishable under the general provisions of Article II were therefore
expressly provided for in the three enumerated clauses—first,
second, and third—which provide for three distinct classes of
offenses against the military laws of Austria-Hungary, and each of
which must be a completed existing offense or military crime before
and at the time of emigration.
The first contemplates a state of war, a draft, conscription, and
actual enrollment of the subject; the second actual service in the
army, and the third a retirement from actual service, but holding
the soldier still subject to peremptory call and proclamation in
case of actual hostilities.
In all three of these cases the Government of Austria-Hungary has
acquired a certain jurisdiction over the person, and the
subject-matter and the crime against the sovereignity of the
Government is complete the moment such jurisdiction is lost by any
willful act on the part of the subject, such as leaving the service
or refusing to obey the call into actual service made on him before
emigration.
That is to say, if the subject leaves actual service, whether in case
of war or peace, or if he fails to obey the call actually made upon
him either personally served or by proclamation in case of actual
hostilities and thereafter emigrates, he may be punished on his
return to his native country for the crime committed, not by the act
of emigration, but by failure or refusal to obey the call or by
desertion from actual service; but such is not the case when he
emigrated before any call or proclamation made or issued, for in
such case the Government of Austria-Hungary had acquired no
jurisdiction over his person.
It could issue no legal call into its army against a person beyond
its boundaries and who had perhaps renounced his allegiance to his
native country, had availed himself of the right of expatriation,
and declared his allegiance to another government.
The treaty does not and can not contemplate such a case.
Under this construction of the treaty of 1870, the case of Mr. Sedivy
could not come under the first or second provision of Article II,
for they both provide for cases of actual service, the first in time
of war and the second in time of peace, and as he had completed his
three years of actual service and had already been two years or more
on the retired list, he must come within the third provision if at
all, and, as I have already said, he can only be guilty of an
offense within the terms of this provision if call for service was
made upon him before emigration and while he was within the
jurisdiction of Austria.
I am confident that no difference of opinion will arise between your
excellency and myself in this construction of the provisions of this
treaty, which I have only briefly stated.
I am led to infer from the note of your excellency that proceedings
in this case have not yet been concluded. May I ask, therefore, if
the facts of the case be found in accordance with the statement
contained [Page 11] in my note No.
117, of December 30, 1895, and your excellency agree with me in my
interpretation of the provisions of said treaty under which the
offense is sought to be maintained, that the proceedings be at once
directed to be dismissed and Mr. Sedivy be released from
confinement. But in case the local authorities for any reason
persist in maintaining jurisdiction in the case, I desire to be
permitted to intervene and to be advised of the proceedings already
taken, the facts relied upon to constitute the offense, and of the
statutes and law claimed to give jurisdiction over the person and
subject-matter of the offense.
Permit me, etc.,
[Inclosure 5 in No.
208.]
Mr. Tripp to
Count Goluchowsky.
United States Legation,
Vienna, February 17,
1896.
Your Excellency: Since forwarding to your
excellency my note No. 122, of date February 15, 1896, in reference
to the case of Ladislao Sedivy, I am in receipt of a communication
from the United States embassy in Berlin giving me information as to
a decision recently rendered by the Imperial court of appeals in
Leipsic in the case of F. W. Boehme, a naturalized citizen of the
United States, who had been convicted by the lower court for having
emigrated to America without performance of military duty under the
laws of Germany, in which case the judgment of the lower tribunal
was reversed by the court of appeal and Mr. Boehme was directed to
be discharged.
I am further in receipt of a circular issued by the minister of
justice of Germany in reference to naturalized American citizens
returning to Germany and their rights under the treaty of February
22, 1868, between the North German Confederation and the United
States of America, which contains the provision as to punishment of
returning naturalized American citizens for offenses committed
before emigration, which it will be observed is almost identical
with the general provision of Article II of the treaty of 1870
between Austria-Hungary and the United States, and is as follows:
Article 2. A naturalized citizen of
the one party on return to the territory of the other party
remains liable to trial and punishment for an action
punishable by the laws of his original country and committed
before his emigration; saving, always, the limitation
established by the laws of his original country.
I am also in receipt of an instruction to judicial and executive
officers from the ministry of justice of Germany in reference to the
preceding provision of the Berlin treaty, from which I extract the
following:
Bei Abschluss des zwischen dem Norddeutschen Bunde und den
Vereinigten Staaten über die Staatsangehörigkeit der
Ausgewanderten verabredeten Vertrags vom 22. Februar d. J.
hat die Absicht vorgewaltet:
Dass durch die strafbare Auswanderung verwirkte Strafe bei
einer Rückkehr des Betreffenden in seine frühere Heimath in
Gemässheit des Artikels II jenes Vertrags nicht zur
Vollstreckung gebracht werden soll, wenn der Rückkehrende in
dem anderen Staate das Heimathsrecht in Gemässheit des
Artikels I des gedachten Vertrags erworben hat.1
[Page 12]
From which it will be observed that the view taken by the authorities
of Germany is quite in accordance with those expressed in my note,
No. 122, of date February 15, 1896, which this is designed to
supplement.
I have, etc.,
[Inclosure 6 in No.
208.—Translation.]
Count Welsersheimb to Mr. Tripp.
Vienna, September 16,
1896.
Sir: The ministry of foreign affairs has
not omitted to address itself to the ministry of public defense
after receipt of the esteemed notes dated respectively February 15
and 17 last, numbered 122 and 124, in order that investigations be
made concerning Ladislao Sedivy, a naturalized citizen of the United
States, and the charge made against him for desertion, namely,
whether he emigrated after having received summons to report for
duty, or whether this order reached him after his arrival in
America.
The ministry of war, which received information concerning this case
from the ministry of public defense, took occasion to refer the
matter to the superior military court, which after full
investigation of all the data and receipt of all the necessary
information has ordered the suspension of proceedings commenced
against him by the garrison court at Josefstadt on the 29th of
January, 1896, in conformity with paragraph 196, B. and G. and M. S.
T. O.
As seen from the statements, the investigations made by the superior
court clearly showed that Ladislao Sedivy, who, by the way, left for
America on March 16, last, emigrated before he had received any
summons to report for military duty, was subsequently naturalized as
a citizen of the United States, and is therefore, according to
Article II of the treaty of September 20, 1870, with the United
States, not liable to military duty.
While the ministry of foreign affairs brings the foregoing to the
knowledge of the envoy of the United States, the Hon. Bartlett
Tripp, it takes occasion to return herewith the inclosures contained
in the note of December 30, 1895, No. 117, and begs to renew,
etc.,
Welsersheimb,
For the Minister of Foreign
Affairs.