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"A state has the unquestionable legal right to regulate under penalties either the emigration of its subjects or the immigration of aliens, as also to punish its nationals for failure to report for military service, except so far as restrained by treaty. (1 Rivier, 269; 2 Wharton, sec. 171.)
"A state does not, however, necessarily take official notice of the naturalization of its subjects as citizens of another state. Consequently, in the absence of such official knowledge, it may, if authorized to do so by its own laws, proceed against them by judicial trial and condemnation, even in their absence. With such treatment by it of its own subjects no other state has any concern.
“As the case is stated, Friedlaender was a native-born German subject and appears to have been condemned as for punishable emigration. If he had received permission to emigrate, the judgment was not unlawful, though erroneous in point of fact, unless the fact was shown at the trial; if he had not received such permission, it was not unlawful unless at the trial proof was submitted showing his naturalization in the United States and his compliance with the terms of the treaty. As the case is stated, it does not appear that the judgment was unlawfully rendered, although erroneous. And as the German court or Government would not know this error without evidence of the facts which brought Friedlaender within the exemption of the treaty, it is entirely proper that he should take steps before the court to have the judgment vacated and set aside, on proof of the facts which would have constituted a good defense of the action if they had been presented at the trial, or that he should petition the Emperor to vacate the judgment, submitting the facts and proofs necescary to show that the judgment was in fact given in violation of the treaty.
“While this may result in some inconvenience in practice, it is the course pursued in the United States in analogous cases. If a judgment by default has been rendered against a person during his absence, provision is usually made for his application to the court, within a given period, to have the judgment set aside for error of law or fact. If a person has been condemned as a criminal, he may have judicial proceedings to correct an erroneous conviction, and in the last instance may appeal to the Executive to grant a pardon.
The advice of the German foreign office that an appeal be made to the Emperor to set aside the judgment on the grounds stated in your dispatch, so far from involving a concession that the conviction was not erroneous in fact, may be accepted in the sense that it was erroneous because rendered in violation of the treaty, as authentically interpreted in the circulars. A pardon would be inappropriate as implying a guilt which is shown not to exist in fact, yet if this is the only way the Emperor can lawfully proceed, the proceeding should be accompanied by you with this interpretation.
“ The better course in all such cases is for the naturalized American to have proceedings instituted in the proper court to vacate the judgment, if such remedy is given by the local laws; and in all cases if they have notice they should make defense by counsel if allowable to suits of that character while pending. They should not burden the embassy by asking it to relieve them from the consequences of their own neglect to defend; but it is, of course, proper for you to render them all necessary assistance, even when they could have avoided trouble by timely attention to their own interests.”
Mr. Hill, Acting Sec. of State, to Mr. White, amb. to Germany, July 26,
1901, For. Rel. 1901, 181.
(2) STATUTES OF LIMITATION.
By the treaty of naturalization with the North German Confederation, it is provided that crimes committed before emigration may be punished on the return of the emigrant, saving always the limitation established by the laws of his original country. The naturalization treaties with the other German States add the words “ or any other remission of liability to punishment.” . Bavaria adds to this that the returned emigrant is not to be made punishable for the act of emigration itself, and Baden makes special provision concerning trial and punishment for nonfulfillment of military duty.
Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Germany, April 14,
1873, For. Rel. 1873, I. 279, 280. “It is true that the treaties with the four South German States expressly
add in words that the returning emigrant shall be safe from punishment in all cases when a resident citizen enjoys such an immunity, but those forms of remission of liability to punishment, other than that of limitation, exist only by public acts, and are as such enjoyed by everybody, naturalized or native citizen of a foreign country, who comes to Germany.
Thus the five treaties are on this point absolutely identical.” (Mr. Bancroft, min. to Germany, to Mr. Fish, Sec. of State, May 8, 1873, For. Rel. 1873, I. 284, 287–288, where the reasons for this statement are given.)
In an instruction to the legation at Berlin, May 21, 1887, Mr. Bayard stated that it appeared by a dispatch from the legation, No. 95, of March 21, 1879, published in Foreign Relations for 1879, page 373, that by the law of Würtemberg, where property was attached to enforce the payment of a fine imposed upon a person found guilty of desertion for failing to perform military duty, the attachment expired by limitation. In this relation Mr. Bayard asked the legation to furnish, if practicable, an abstract of the limitation laws of Germany relating to attachments, fines, and other penalties for the nonperformance of military duty or desertion. The legation, in its No. 459, June 21, 1887, transmitted a report on the subject prepared by Mr. Coleman, secretary of legation. It was subsequently stated by the legation in its No. 481, July 28, 1887, that a repeated examination by Mr. Coleman of the German laws failed to show the existence of any provision by which the running of the statute was interrupted by absence beyond seas or other absence from Germany.
Mr. Bayard, Sec. of State, to Mr. Pendleton, min. to Germany, May 21,
1887; Mr. Pendleton to Mr. Bayard, June 21, 1887, and July 28,
1887; For. Rel. 1887, 389, 392, 3999. Mr. Coleman's report reads as follows: “Abstract of limitation laws of Germany relating to fines, attachments to
secure the same, and to other penalties for the nonperformance of
military duty and for desertion. “I. Limitation for nonperformance of military duty (in the words of the
German penal code 'violation of military duty'). “ The statute declares the offense to exist in the following three cases,
assigning to each its penalty : “(1) Where a person owing military duty, in order to avoid entering the
standing army or navy, leaves the territory of the Empire without permission, or after having reached the age of military duty, remains
without that territory without permission. “The punishment for this offense is a fine of from 150 to 3,000 marks, or
imprisonment of from one month to one year. “(2) Where an officer, or a physician holding the rank of an officer of the
reserve, the ‘Landwehr,' or Seewehr,' emigrates without permission. " The punishment for this offense is a fine not exceeding 3,000 marks, or
arrest, or imprisonment not exceeding six months. “(3) Where a person owing military duty emigrates after the publication
of a decree by the Emperor, issued with reference to the existence of
war, or to the danger of an outbreak of war. “The punishment for this offense is imprisonment not exceeding two
years and a fine not exceeding 3,000 marks. “The property of the person charged with this offense may be attached,
in so far as in the opinion of the judge such course is requisite to secure the amount of the highest fine which might be imposed, to
gether with the cost of the proceedings. " When prosecution is barred by limitation.- Violation of military duty,'
in the sense here under consideration, is denominated a misdemeanor, and prosecution for the same is barred by limitation after five years, at which time any attachment imposed on the property of the of
fender becomes inoperative. “ Interruptions of the running of the statute.—Every judicial measure
adopted against the offender on account of the offense interrupts the running of the statute, which begins to run anew after the interruption. If the commencement or the continuation of a penal proceeding is dependent upon another question which must be first decided in another proceeding, the statute ceases to run until such decision is reached.
" When erecution of a judgment is barred.—The erecution of a judgment
for violation of military duty is barred by limitation in five years. “ Running of the statute and interruptions to same.—The statute begins
to run with the day on which the judgment becomes valid (rechtskräftig). Every act of the authority upon whom the execution of the judgment devolves which has for its aim such execution, as well as the arrest of the offender for the purpose of such execution, interrupts the running of the statute. After the interruption in the exe
cution of the judgment the running of the statute begins anew. “The execution of a fine adjudged concurrently with imprisonment is not
barred by limitation earlier than the execution of the punishment of
imprisonment is barred. “II. Limitation for desertion (Fahnenflucht). “ The German military penal code (Militär-Strafgesetzbuch) declares that
he who, without permission, quits the military or naval service for the purpose of permanently evading the performance of the service
lawfully devolving upon him shall be regarded as guilty of desertion. “The penalty attached to the offense under varied circumstances.-1. (a)
The penalty for desertion is imprisonment of from six months to wo years; (b) in the case of a second offense, imprisonment of from one to five years; (c) in the case of a further repetition, penal servitude
(Zuchthaus) of from five to ten years. “2. (a) The penalty for desertion committed in the field is imprisonment
of from five to ten years; (0) in the case of a second offense if the former desertion was not committed in the field, penal servitude of not less than five years; (c) and, if the desertion was committed in
the field, death. “3. (a) The penalty of penal servitude or imprisonment incurred for de
sertion is, when committed by several persons together, upon an agreement to do so, increased by from one to five years; (0) in case the act was committed in the field, penal servitude, instead of imprisonment, for the same period; (c) and as against the ringleader and
the person suggesting the offense, death. “4. (a) The penalty for the desertion of a sentry before the enemy or
from a besieged fortress is death; (b) a deserter who goes over to
the enemy also incurs the death penalty. (It is remarked in this connection that no fines are incurred by deser
tion.) " Definitions contained in the military penal code based upon the degree
and character of the penalties incurred for desertion under the varied circumstances above stated.-1. An act punishable by deprivation of liberty (not including penal servitude) of not more than five years
is denominated a military misdemeanor. "2. An act punishable by death, penal servitude, or deprivation of liberty
for more than five years is denominated a military crime. When prosecution for descrtion is barred.-1. When the offense is a
military misdemeanor as above defined, in fire years. " 2. When the offense is a military crime as above defined prosecution is
barred as follows: (a) In tuenty years, if the penalty is death or penal servitude for life; (b) in fifteen years, if deprivation of liberty for a longer period than ten years; (c) and in ten years, if depriva
tion of liberty for a shorter period. “The running of the statute barring prosecution for desertion begins with
the day on which the deserter, if he had not committed the act, would have completed his lawful term of service, and is, as far as pertinent to the limitation of prosecution for desertion, subject to the same conditions as are hereinbefore stated under the head of limitation for
violation of military duty. “ When execution of a judgment is barred.--The execution of a judgment
for desertion is barred as follows: “1. In thirty years, if the penalty adjudged is death, penal servitude for
life, or confinement in a fortress for life. “2. In twenty years, if penal servitude or confinement in a fortress for
more than ten years. " 3. In fifteen years, if penal servitude of not more than ten years, or con
finement in a fortress of from five to ten years, or imprisonment of
more than five years. “4. In ten years, if confinement in a fortress or imprisonment of from two
to five years. “5. In fire years, if confinement in a fortress or imprisonment of not more
than two years. “ It is remarked in conclusion that the German military penal code, from
which the foregoing abstract, as far as it relates to desertion, is taken, went into effect on October 1, 1872, and thereby superseded all other military penal provisions of law affecting material rights, learing in force only certain forms of procedure existing in individual states of the Empire."
“Mr. [August] Junge was born at Celle, in the province of Hanover, May 28, 1867, and in 1887 he was taken as a recruit for the military service. He was permitted to go on leave till November 2, 1887, with orders to report for duty at that time. He did not obey, but emigrated to America to avoid the service. That he was a deserter is not denied or disputed. It has been so frequently and uniformly held that the treaty does not protect such deserters against trial and punishment on their return to Germany, although they have become naturalized as citizens of the United States, that I have not thought it advisable, though urged to do so, to intervene to claim immunity for him. It is, perhaps, quite unnecessary to make any reference to cases on this point; nevertheless I venture to cite Hans Jacobson's case (Foreign Relations, 1888, Vol. I., p. 586, Minister Pendleton, and p. 589, Secretary Bayard), in which, under similar circumstances, the action of the minister in declining to make application in the absence of instructions was approved."
Mr. Runyon, amb. to Germany, to Mr. Gresham, Sec. of State, Dec. 20,
1894, For, Rel. 1895, I. 530, Junge, born at Celle on May 28, 1867, was accepted in 1887 at Harburg
by the main recruiting commission (Ersatz Kommission), and was ordered to report on November 1 of the same year. He did not appear, however, at the date fixed for him to report, and the investigations which were instituted showed that he had left for America. In consequence thereof he was, on September 24, 1887, by sentence of a military court, declared a deserter, and in contumaciam legally sentenced to pay a fine of 200 marks.