Mr. Tripp to Mr. Olney.

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.,

Bartlett Tripp.
[Inclosure 1 in No. 208.]

Mr. Tripp to Count Goluchowsky.

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.,

Bartlett Tripp.
[Inclosure 2 in No. 208.]

Mr. Tripp to Count Goluchowsky.

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.,

Bartlett Tripp.
[Inclosure 3 in No. 208.—Translation.]

Count Welsersheimb to Mr. Tripp.

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.

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.,

Bartlett Tripp.
[Inclosure 5 in No. 208.]

Mr. Tripp to Count Goluchowsky.

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.,

Bartlett Tripp.
[Inclosure 6 in No. 208.—Translation.]

Count Welsersheimb to Mr. Tripp.

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.,

For the Minister of Foreign Affairs.
  1. The conclusion of the treaty of February 22 last, agreed upon by the North German Confederation and the United States concerning the nationality of emigrants, had the object: That pursuant to Article II of the treaty, the penalty incurred by a culpable emigration was not to be enforced upon the return of the party in question to his former home, when he had acquired citizenship in the other State pursuant to Article I.