Mr. Tripp to Mr. Olney.
Vienna, October 1, 1896. (Received Oct. 16.)
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.,
- 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.↩