Mr. Tower to Mr.
Hay.
United
States Legation,
Vienna
,
January 18,
1899
.
No. 114.]
Sir: I have the honor to report to you for your
information the case of Erminio Demartini, an American citizen, whose
name was inscribed until recently upon the military lists at Trieste as
a deserter from the Austro-Hungarian army, but whose citizenship has now
been duly recognized in consequence of the intervention of this
legation, with the [Page 26] result that
the said Mr. Demartini has been freed from the charge of desertion
brought against him and from all liability to perform military service
within this Empire.
The facts of this case are as follows: Erminio Demartini was born in
Brooklyn, N. Y., on the 7th of November, 1875. He was the son of
Francesco Demartini, a native of Trieste, who emigrated to the United
States and was admitted to citizenship there before the superior court
of the city of New York on the 15th day of October, 1868. The said
Erminio Demartini came to Austria at the age of 9 years in 1886,
accompanied by his parents, and lived in the city of Trieste from the
year 1886 to 1896. His father never returned to the United States, but
appears to have come back to his native country with the purpose of
spending here the rest of his days, and he did in fact remain in Trieste
until his death, which occurred there in the year 1897. It does not
appear, however, that he ever expressed an intention to abandon his
American citizenship. The mother of the young man is still alive and
residing in Trieste.
During the ten years of his residence with his parents at Trieste,
Erminio Demartini was regarded by the local authorities as an Austrian
subject, and in the course of time his name was entered upon the lists
of those liable to perform military service in the Empire.
In the year 1896 he was summoned to appear as a conscript, but evidently,
without offering to prove his right of exemption upon the ground of his
American citizenship, he disregarded the summons and went to New York,
whereupon he was declared to be in default and his name inscribed as a
deserter from the Austro-Hungarian army.
The case was first brought to my attention by a letter dated the 16th of
June, 1898, from Messrs. Hobbs & Gifford, attorneys at law, of New
York City, who recited the facts relating to it, and informed me that
Erminio Demartini now desires to visit Austria temporarily for the
purpose of seeing his mother, but hesitates to do so unless relieved
from the liability to be now held for service in the army. They
requested me to make the proper representation to the Austrian minister
of war, or other autnority having jurisdiction, to the end that this
young man may be officially relieved from his embarrassment and declared
to be not subject to military duty in Austria in the event of his return
and temporary sojourn in that country, if such a course should be
consistent with your view of public duty.
As the letter of Messrs. Hobbs & Gifford did not present the
necessary evidence as to the citizenship of the said Erminio Demartini,
I replied to them on the 22d of July that, “in order that I may take the
proper steps to carry out your request, I shall have to ask you to
furnish me with an exemplification of the record (duly authenticated) of
the naturalization of Francesco Demartini, the father, as also an
affidavit by some disinterested person conversant with the facts as to
the date and place of birth of Erminio Demartini, and his residence in
the United States since that time.”
This request having been complied with by Messrs. Hobbs & Gifford in
their letter of the 19th of August, as will be seen by the copies of the
correspondence hereto attached, and it having been shown by the
exemplification of the record that Francesco Demartini was in fact
admitted to citizenship in the United States of America, before the
superior court of the city of New York, on the 15th day of October,
1868, and it having been further shown by the affidavits accompanying
[Page 27] the documents that Erminio
Demartini was born in Brooklyn in the year 1875, subsequently,
therefore, to the naturalization of his father, I undertook the
necessary proceedings for his relief by addressing to the Count
Goluchowski, Austro-Hungarian minister of foreign affairs, the note
dated the 18th of October, 1898, of which a copy is included in the
correspondence herewith submitted.
I am now in receipt of a note from the Austro Hungarian minister of
foreign affairs dated the 14th of January, 1899, in reply to my
communication, in which he informs this legation that, in view of the
facts which I have presented to show that Erminio Demartini is to be
regarded and treated as an American citizen, the provincial government
of Trieste has been instructed by the ministry of national defense to
take immediate steps to remove his name from the army lists.
I have notified Messrs. Hobbs & Gifford of this act of justice to
their client, and have informed them that the case of Mr. Demartini has
been duly reported by me to the Department of State.
I have, etc.,
[Inclosure 1.]
Hobbs &
Gifford to Mr. Tower.
New
York City
,
June 16,
1898
.
Dear Sir: Mr. Erminio Demartini, aged 23
years, is now a resident of the borough of Brooklyn, in the State of
New York. He was born in the then city of Brooklyn on the 7th day of
November, 1875, where his father and other members of his family
then resided.
His father, Francesco Demartini, originally an Austrian subject, came
to this country in about the year 1863, and was fully naturalized in
the superior court of the city of New York in 1868.
In 1885 Francesco Demartini returned to Austria, taking the younger
members of his family with him, including Ermie, and took up his
residence at Trieste, leaving the two oldest children in the United
States, where they have since remained, and now remain.
In March, 1896, Ermie, then residing with his father at Trieste, was
inspected for service in the Austrian army, and having been passed
as to his physical qualifications, was ordered to join the army in
the following October. Ermie, claiming that he was a subject of the
United States and not subject to compulsory military duty in
Austria, did not report for service in the Austrian army, but came
to this country in May, 1896, and since that time has been employed
and domiciled in Brooklyn.
Within the last year his father has died at Trieste, and Ermie
desires now to visit Austria temporarily for the purpose of seeing
his mother, but hesitates to do so unless relieved from the
liability to be now held for service in the army.
If, therefore, it shall satisfactorily appear that this young man is
a subject of the United States, and consequently not liable to
compulsory military service in Austria, we would respectfully ask
your honor to make the proper representation to the Austrian
minister of war, or other authority having jurisdiction, to the end
that this young man may be officially relieved from his
embarrassment and declared to be [Page 28] not subject to military duty in Austria in the
event of his return and temporary sojourn in that country, if such a
course would be consistent with your view of public duty.
The matters of fact stated in this communication relating to the
residence and naturalization in New York of Francesco Demartini, the
father of Ermie, and the birth of the young man in this country
after the naturalization of his father, are within the personal
knowledge of the senior member of the firm making this
communication, and these and other necessary facts are supported by
the affidavit of the young man in whose behalf this application is
made, which affidavit is herewith inclosed for your information.
It will afford us much pleasure to hear from the minister on the
subject-matter of this communication.
Very respectfully, yours,
[Inclosure 2.]
Mr. Tower to
Messrs Hobbs. &
Gifford.
United States Legation,
Vienna
,
July 22,
1898
.
Dear Sir: I have duly received your letter
of the 16th of June, in which you make the request that the case of
Mr. Erminio Demartini be brought to the attention of the Austrian
authorities and his name removed from the list of those liable to
perform military duty within the jurisdiction of this Empire.
It appears that Mr. Demartini was born in Brooklyn, and is the son of
Francesco Demartini, a naturalized citizen of Austrian birth. He was
born subsequently to the naturalization of his father; but having
come with the latter to Austria during his minority, and having
lived in the city of Trieste several years, his name was inscribed
there among those subject to military service. Mr. Demartini did not
enter the Austrian service, but went back to the United States, and
now resides in Brooklyn, he never having abandoned or intended to
abandon his American citizenship. He wishes to return to Austria
temporarily to make a visit to his mother at Trieste, his father
having recently died, and the request made by you to this legation
arises from his desire to come here without danger of incurring the
inconveniences of arrest and detention upon the charge of being a
deserter from the Austrian army.
As far as 1 understand this case, Mr. Demartini was never liable to
military service here.
In order that I may take the proper steps to carry out your request I
shall have to ask you to furnish me with an exemplification of the
record (duly authenticated) of the naturalization of Francesco
Demartini, the father, as also an affidavit by some disinterested
person conversant with the facts as to the date and place of birth
of Erminio Demartini, and his residence in the United States since
that time.
Once in possession of these documents I shall endeavor to establish
here Mr. Erminio Demartini’s right to enjoy all the privileges that
he may be entitled to under our treaty as an American citizen.
I am, etc.,
[Page 29]
[Inclosure 3.]
Messrs. Hobbs &
Gifford to Mr. Tower.
New
York
,
August 19,
1898
.
Dear Sir: We have duly received your
esteemed favor of July 22 last in answer to ours of June 16 relating
to the case of Mr. Erminio Demartini, who desires to be relieved
from the liability to serve in the Austrian army upon the ground
that he is an American citizen and not liable to such service.
As requested by you, we now send you an exemplified copy of the
naturalization papers of Mr. Francesco Demartini, the father of
Erminio, and we also forward several affidavits which, we suppose,
establish the necessary facts as a basis for your application to the
proper Austrian authorities, the copies of the naturalization papers
and the affidavits being so authenticated as to make them available
for use in the Austrian Empire.
You will be good enough to accept our thanks for your courtesy in
this matter and to permit us to express the hope that you may be
able to give it still further attention.
Yours, very truly,
[Inclosures.]
- 1.
- Authenticated copy of the certificate of naturalization of
Francesco Demartini issued to him by the superior court of the
city of New York (now the supreme court of the State of New
York, first judicial district) on the 15th day of October,
1868.
- 2.
- Affidavit of James Division, of the city of New York, N. Y.,
as to the American citizenship of Francesco Demartini.
- 3.
- Affidavit of Henry P. Berti, of the city of New York, N. Y.,
as to the American citizenship of Francesco Demartini.
- 4.
- Affidavit of Edward H. Hobbs, of New York City, N. Y., as to
the American citizenship of Francesco Demartini and his son,
Erminio Demartini.
- 5.
- Affidavit of Erminio Demartini, of the city of New York, N.
Y., as to his own as well as his father’s American
citizenship.
[Inclosure 4.]
The Legation to the
Foreign Office.
United States Legation,
Vienna
,
October 18,
1898
.
Your Excellency: Representations have been
made to this legation on behalf of Mr. Erminio Demartini, a citizen
of the United States of America, who declares that his name is
carried upon the list of persons liable to be called to perform
military service in the Imperial and Royal Army of the
Austro-Hungarian Empire.
The facts of the case are as follows: The said Erminio Demartini was
born in the city of Brooklyn, in the State of New York, on the 7th
day of November, 1875; he was the son of Francesco Demartini, now
deceased, a native of Trieste, who emigrated to the United States,
and who was admitted to citizenship before the superior court of the
city of New York the 15th day of October, 1868, as is shown by the
records of the said court. Under the laws of the United States,
therefore, [Page 30] Mr. Erminio
Demartini is a citizen of the United States, he having been born and
having resided within the jurisdiction of the United States
subsequently to the naturalization of his father.
The said Erminio Demartini came to Austria with his father in the
year 1886, and remained at Trieste until 1896, when he returned to
his home in America. He is now in Brooklyn, in the State of New
York, where he resides.
Mr. Demartini declares that during his visit to Trieste, above
referred to, his name was placed upon the military lists there, and
that it has never been stricken off, although he has in fact never
been liable to military duty in Austria. He further declares that he
is desirous of making a visit to his mother, who still remains in
Trieste, but fearing an arrest upon a charge of desertion through
the erroneous inscription of his name upon the military lists, if he
should come within the Austrian jurisdiction, he has appealed to
this legation for relief.
I have the honor to request that your excellency will have this
subject examined into by the proper authorities, and if the facts
prove to be true as they have been here presented, that the name of
this American citizen may be removed from the lists of those liable
to perform military service within the Imperial and Royal
Empire.
I avail myself, etc.,
[Inclosure 5.]
The Legation to
Messrs. Hobbs &
Gifford.
United States Legation,
Vienna
,
October 18,
1898
.
Dear Sirs: I have duly received your letter
of the 19th of August with an exemplified copy of the naturalization
papers of Francesco Demartini and the affidavits relating thereto,
which you inclosed in it.
At your request I have presented the case of Mr. Erminio Demartini to
the Austro-Hungarian ministry of foreign affairs, and have asked
that his name shall be stricken from the military lists at Trieste,
on the ground that as an American citizen he is not liable to
perform military duty within the Empire.
Cases of this kind require considerable time in Austria. It may be
several months before a reply is sent to this legation. I shall
notify you, however, immediately upon its receipt.
I am, etc.,
[Inclosure
6.—Translation.]
The Austro-Hungarian Foreign
Office to the Legation.
In reference to the esteemed note No. 82 of the 18th of October,
1898, the Imperial and Royal ministry of foreign affairs has the
honor to inform the legation of the United States of America that,
according to an investigation undertaken by the Imperial and Royal
ministry of national defense, it appears that Erminio Demartini, who
was born [Page 31] in 1875 and is now
residing in Brooklyn, was actually placed upon the list of those
liable to military duty in the city of Trieste, and that he was
summoned there as a conscript on the 2d of March, 1896, and
proclaimed a deserter from the Ninth Regiment of the Imperial and
Royal artillery division.
The chief cause of this proceeding was that Erminio Demartini himself
never offered an objection to being treated as an Austrian subject
liable to military service, and the city magistrate of Trieste had
no knowledge of the fact that Francesco Demartini, formerly residing
in Trieste and now deceased, had been admitted to citizenship in the
United States of America prior to the birth of his said son.
Now that Erminio Demartini is to be regarded and treated, however, as
an American citizen, as appears from the esteemed note above
referred to, the provincial government of Trieste has been
instructed by the ministry of national defense to take immediate
steps to remove his name from the army lists, according to the
provisions of articles 1 and 6 of paragraph 56 of the Army Laws,
Part II.
Vienna, January 14,
1899.
For the minister:
Welsersheimb.
[Inclosure 7.]
The Legation to
Hobbs &
Gifford.
United States Legation,
Vienna
,
January 17,
1899
.
Dear Sir: I have the pleasure of informing
you that, upon the intervention of this legation the Government of
Austria-Hungary has recognized the American citizenship of your
client, Mr. Erminio Demartini, and has ordered his name to be
stricken from the list of deserters from the Austro-Hungarian army
at Trieste.
Mr. Demartini’s case has been duly reported by me to the Department
of State at Washington.
Very respectfully, yours,
