Mr. Hay to Mr. Harris.
Washington, May 10, 1900.
Sir: I have to acknowledge the receipt of your dispatch, No. 86, of the 9th ultimo, in which you submit, for the instructions of the Department, the military service case of Franz Rath, who, after performing active service in the Austro-Hungarian army, went to the United [Page 31] States with a pass, became a naturalized citizen of the United States, and is now declared a deserter because he failed to answer a military call.
You are aware that our courts admit aliens to citizenship upon compliance with the requirements of our naturalization laws without regard to any claims upon them of the country of their origin.
Unless the emigrant, at the time of leaving Austria-Hungary, came within one of the three specific provisions of Article II of the treaty, he is not, upon return to Austria, subject to military service or trial and punishment under the military laws. The treaty expressly declares that he can neither be held to military service nor remain liable to trial and punishment for the nonfulfillment of military duties.
Rath does not come within the description of either of the three provisions of Article II referred to.
The questions raised in this case appear to be pretty thoroughly covered by the case of Ladislao Sedivy, the correspondence concerning which is printed in Foreign Relations for 1896, pages 6 et seq., which was made a test case by your predecessor, Mr. Tripp. The position taken by Mr. Tripp was 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. This position was conceded by the Austrian authorities.
You may represent these views of the Department to His Majesty’s Government.
I am, etc.,