home in the United States as soon as his visit to his mother was completed; that he arrived in Jablonitz on or about April 26, 1895, and shortly thereafter received notice to report himself before the military authorities in Pressburg on the 25th day of May, 1895, and that upon reporting he was immediately enrolled and required to serve as an Austrian soldier in the infantry regiment "Edler v. David, No. 72, Ninth Company," first at Pressburg and later at Tyrnan; that, ignorant of his rights, he failed to make known to the proper officers at the time of his enlistment that he was a citizen of the United States; that he is still detained as a soldier in the army against his will. If the facts be found as stated in this complaint, may I ask that your excellency will provide that immediate steps be taken to release Mr. Winter from military service and to procure the cancellation of his name upon the rolls of the army of Austria-Hungary, and permit me at the same time to take this occasion to renew, etc. BARTLETT TRIPP. [Inclosure 2 in No. 183.] Count Welsersheimb to Mr. Tripp. VIENNA, March 22, 1896. In reply to the esteemed note of January 25 last, No. 120, concerning the enrollment of Bernhard Winter, a naturalized citizen of the United States, into the ranks of the Imperial and Royal Army, the ministry of foreign affairs has the honor of informing the honorable envoy of the United States that a communication was addressed at the time to the royal Hungarian ministry of public defense conveying to the same the contents of the above-mentioned esteemed letter, and that the royal Hungarian ministry, after full investigation of the case and after having ascertained that Bernhard Winter was duly naturalized in the United States, has issued orders under date of March 5 last, in order that the above-named individual be immediately discharged from the army and that his name be struck from the rolls. The undersigned avails, etc., WELSERSHEIMB, Mr. Olney to Mr. Tripp. No. 219.] DEPARTMENT OF STATE, SIR: I have to acknowledge the receipt of your dispatch No. 183, of the 25th ultimo, in relation to the prompt release of Mr. Bernhard Winter, a naturalized American citizen who was arrested for the nonperformance of military duty and who failed to disclose to the military authorities upon his arrest that he was an American citizen. The Department is gratified to learn from your dispatch that the cases of arrest for failure to perform military duty on the part of naturalized citizens of the United States returning to Austria-Hungary are now quite infrequent, owing to the earnest disposition of the Austro-Hungarian Government to strictly observe the stipulations of the naturalization treaty of the 30th of September, 1870. RICHARD OLNEY. I am, etc., MILITARY SERVICE-CASE OF LADISLAO SEDIVY. No. 208.] Mr. Tripp to Mr. Olney. UNITED STATES LEGATION, 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 AustriaHungary 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., [Inclosure 1 in No. 208.] BARTLETT TRIPP. Mr. Tripp to Count Goluchowsky. UNITED STATES LEGATION, 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 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. UNITED STATES LEGATION, 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 and intention on the part of the Government of Austria-Hungary. Í 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. VIENNA, February 12, 1896. 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. UNITED STATES LEGATION, 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 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 noufulfillment 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. |