Mr. Harris to Mr. Hay.
Vienna, April 9, 1900.
Sir: I have the honor to submit the following case for instructions:
Franz Rath was born in Austria in 1865. He served in the army from April 22, 1882, until December 31, 1886, when he was transferred to the reserve, wherein he was liable to call for six years. The practice is to call the reserves annually for a few weeks’ maneuvers.
It would seem from his statement that he responded to these calls as long as he remained in Austria.
During the said six years, that is to say, on September 10, 1887, he was given a “pass” to go to America by the proper authorities (in the usual form) as follows: “Good until the recall of the bearer hereof, as a sergeant in the Imperial and Royal Infantry Regiment No. 4,” signed by the “Bezirkshauptmann” at Mistellach, Lower Austria.
Under this permission Mr. Rath emigrated, and was registered with the Austro-Hungarian consul-general in New York City in compliance with a military regulation, under which his officers were informed of his address.
Early in 1889 his officers issued to him in the usual manner a written notice or “call” into service for the annual manuevers. This notice was forwarded to said consul-general, and by him served on Mr. Rath. He did not comply. He states that the service was made on February 26, to appear at Mistellach (the regimental quarters) on March 1 following.
If the notice is to be regarded by our Government I am inclined to the opinion that this was not a valid excuse, as it would seem his duty was to obey the call as far as possible, and return without delay. He could have come to Austria in less than two weeks, and before the manuevers were over.
During said month of March he addressed a petition to the military authorities for an extension of his “pass.” This was denied in a letter, as follows:
Imperial and Royal
Austro-Hungarian Consulate at New York,
August 6, 1889.
Sir: You are informed herewith that the Imperial and Royal Bezirkshauptmann-schaft at Mistellach has not been able to comply with your demand for prolongation of your passport, because you did not appear at the military exercises in March of the current year (1889). You are therefore considered as a deserter, and will be treated as such.
Balitschek,
Imperial and Royal Consul.
Since then Mr. Rath has made in his own behalf ineffectual attempts to have the charge of desertion struck from the military rolls. His name is read off as a deserter at every annual meeting of the reserves. The purpose is self-evident.
Mr. Rath was naturalized in the city court of Utica, Oneida County, N. Y., on October 13, 1891, and is a teacher of music in that city. He has asked this legation to intervene in his behalf to have the charge of desertion and also his name stricken from the military rolls in order that he may visit his father and other relatives.
[Page 30]Two questions seem to arise:
First. Should the legation intervene on behalf of naturalized Americans while they are not within Austria-Hungary?
I find it has sometimes been done, and I have in one instance. Yet I am not at all sure that it is proper diplomatic practice. There are many cases similar to this. And it seems well that it be settled whether it is the duty of this legation to intervene at the request and in behalf of every naturalized citizen who may find himself liable to arrest, in case of return.
Second. May a member of the reserve or the militia, who emigrates with or without a “pass” before “having received a call into service” for the annual meeting (or muster), be notified in the United States through the Austro-Hungarian consuls in America, or otherwise, to return, and in default declared “deserters” and punishable as such on return after naturalization, and while bearing a passport from the Department or holding one issued by this legation?
By the military laws the young men are put into active service in their 21st year. They serve for three years (with a few exceptions) and then pass for seven years into the reserve, subject to annual call for the yearly muster.
The insistence of this monarchy is, that during this period of seven years it may call an emigrant back, and if he fails to come mark him a “deserter” and punish him as such, although he holds an American certificate of citizenship. I have declined to accept this construction of the treaty.
My view has been and is that under Article I citizens of Austro-Hungary on residing in America five years uninterruptedly may renounce their allegiance to His Majesty, and be adopted as American citizens, whether they bear a “pass” or not, and regardless of any “call” served upon them in the United States. Our courts are not required by the treaty to inquire as to such matters.
I am informed the practice in Europe is often otherwise, and that the inquiry is made whether the applicant, if of military age, has performed his military service in his native country; and if not to refuse naturalization.
My further view is that unless the emigrant at the time of leaving the monarchy comes within one of three specific provisions in Article II, then he can not be punished after naturalization for any act or default under the military laws happening “by or after his emigration.”
If in error I beg to be set right. If I am right, it would not, in my judgment, be at all improper to express in clear words the true view to His Excellency Count Goluchowski at no distant day.
I have, etc.,