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“On October 27 last Junge was arrested at Hamburg by order of the
military authorities, and was tried by a military court. At the trial Junge acknowledged that he emigrated to America for the purpose of permanently escaping the fulfillment of his lawful duty of military service. His desertion had actually taken place before his emigration-when he left Hamburg in October, 1887--and as prosecution was not barred by limitation, article 2 of the treaty with the United States of America of February 22, 1868, is applied to him." (Baron
Rotenhan to Mr. Runyon, Dec. 10, 1894, For. Rel. 1895, I. 532.) “Mr. (Henry] Junge contends that the offense of desertion was not com
mitted prior to his brother's departure from Germany, but consisted exclusively in the fact of his emigration. ... The Department
was unable to accept the distinction made by Mr. Henry Junge.” (Mr. Uhl, Acting Sec. of State, to Mr. Runyon, amb. to Germany, Feb. 26, 1895, For. Rel. 1895, I. 532.)
“In accordance with the direction of your instruction (No. 231) of February 26 last, I have made inquiry whether the statute of limitation was raised or passed upon at the trial of August Junge, and whether anything could be accomplished by now raising the point in behalf of the defendant, and I have the honor to report that I am credibly informed that that defense was not presented at the trial. It further appears that while in such cases as that of Mr. Junge (trial for desertion) the accused is permitted to defend himself, he is not allowed to have counsel for his defense. The limitation in the prose-, cution of the offense of desertion (Fahnenflucht) in such a case as that of Mr. Junge is five years, and the period of limitation begins from the time at which the deserter would have finished his term of military service had the offense not been committed, but the law provides that any action in the case on account of the offense committed taken by the judge against the absent defendant interrupts the running of the statute (Preussische Gesetz-Sammlung, vol. 5, pp. 29, 68): Jede Handlung des Richters, welche wegen der begangenen That gegen den Thäter gerichtet ist, unterbricht die Verjahrung.'
“Whether such dealing (Handlung) with the case by the judge took place in the present instance I do not know. It is said, however, that the practice is to keep such claims alive—to prevent the barring by the statute—by some judicial act from time to time, looking to the punishment of the alleged offender. I may add that I do not see how it could be of any advantage to the accused in this case to raise the question of limitation diplomatically, he having had an opportunity of defending himself on the ground of limitation (if it existed) on his trial.”
Mr. Runyon, amb. to Germany, to Mr. Gresham, Sec. of State, April 11,
1895, For. Rel. 1895, I. 533.
3. AUSTRO-HUNGARIAN TREATY.
“ The information given below is believed to be correct, yet is not to be considered as official, as it relates to the laws and regulations of a foreign country.
“ All male subjects of Austria-Hungary are liable to the performance of military service between the ages of nineteen and forty-two years.
“ Under the terms of the treaty between the United States and Austria-Hungary a former subject of that country now a naturalized citizen of the United States is treated upon his return as a citizen of the United States. If he violated any of the criminal laws of Austria-Hungary before the date of emigration he remains liable to trial and punishment, unless the right to punish has been lost by lapse of time as provided by law. A naturalized American citizen formerly a subject of Austria-Hungary may be arrested and punished under the military laws only in the following cases: (1) If he was accepted and enrolled as a recruit in the army before the date of emigration, although he had not been put in service; (2) if he was a soldier when he emigrated, either in active service or on leave of absence; (3) if he was summoned by notice or by proclamation before his emigration to serve in the reserve or militia, and failed to obey the call; (4) if he emigrated after war had broken out.
"A naturalized American citizen of Austro-Hungarian origin on arriving in that country should at once show his passport to the proper authorities; and if, on inquiry, it is found that his name is on the military rolls, he should request it to be struck off, calling attention to the treaty of September 20, 1870, between this country and Austria-Hungary."
Circular notice, Department of State, Washington, Feb. 1, 1901, For. Rel.
1.901, 7. Mr. Hay, Secretary of State, in an instruction to Mr. Herdliska, chargé
at Vienna, December 10, 1900, stated that the Department, in view of the complaints by naturalized citizens who had received passports that they were not informed of the limits of the protection which they would afford, had determined to pursue a new system, by which no American citizen of foreign birth should receive a passport without being acquainted with the pertinent provisions of the law of the land of his birth, (For. Rel. 1901, 7.)
Naturalization is regarded as a purely domestic act, whereof all the conditions are controlled by the law of the naturalizing country; and while in the interest of reciprocal good feeling the United States has been willing to stipulate by treaty that under certain circumstances the act of naturalization here should not protect an Austrian naturalized in the United States and voluntarily returning to the Empire, from the consequences of violating military law, we cannot admit that any relation in which an alien may stand towards his own Government should be a bar to naturalization as an American citizen, if the applicant be within the jurisdiction of the United States and comply with all the requirements of the statute.
“ Sections 1, 2, and 3 of Article II. of the treaty aim to except from protection by naturalization, in case the naturalized person return to his former country, all cases where the offense of evading military duty shall be completed by some intentional act of the offender, committed while yet within Austrian jurisdiction. The hypothetical case presented does not seem to come within this broad principle.”
Mr. Frelinghuysen, Sec. of State, to Mr. Taft, Aug. 25, 1883, MS. Inst.
Austria, III. 252.
In the case of Frank Xavier Fisher, a naturalized citizen of Austrian origin, who was arrested and imprisoned in Austria for nonperformance of military duty, the Department of State said that if Mr. Fisher, as he alleged, emigrated before he had been conscripted, he was exempt under the treaty of September 20, 1870, from prosecution for nonfulfillment of military duty.
For. Rel. 1889, 25–27, 35–36.
In the case of Ladislao Sedivy, a naturalized citizen of the United States, born in Bohemia, it was held, in accordance with the third proviso of the second paragraph of Article II. of the convention between the United States and Austria of September 20, 1870, that a member of the Austrian reserve corps, who, at the time of his emigration, had not been called into active service, was not subject to trial for violation of the Austrian military law. ,
The same thing was held by the Austrian Government in the case of Franz Holasek, in which it was held that a person who, as a member of the reserve corps, remained liable to be called at any time into active service, was not guilty of desertion if he emigrated to and became a citizen of the United States if he had not been actually summoned for duty.
For. Rel. 1896, 6-13, 16-18.
S. A., born in Bohemia, Aug. 8, 1871, obtained in 1891, before he had been enrolled for military duty, a permit to travel, and went to America, where he was naturalized Dec. 4, 1896. Meanwhile, he was adjudged by the K. K. Kreisels Strafgericht, in Leitmeritz, to have evaded military duty, and his name was entered on the military lists as a deserter. The United States legation at Vienna presented the case to the Austrian Government, submitting a copy of A.'s certificate of naturalization, and requesting that, if the facts should be found to be as stated, his name might be removed from the list of deserters, so that he might enjoy within the Empire the privileges of an American citizen. The Austrian Government replied that, his legal naturalization having been fully established, the necessary steps had been taken to terminate the proceedings for evasion of military duty and to have his name dropped from the military lists, in conformity with the treaty of Sept. 20, 1870.
For. Rel. 1898, 10–15.
Referring to the case of Peter Hornik, a naturalized citizen of the United States, of Hungarian origin, who was said to have been notified by the Austro-Hungarian authorities, on his return to his native country, to appear for military service, the United States legation at Vienna reported: “It would seem that Mr. Hornik was in no way detained or molested contrary to his rights as an American citizen, but that the summons sent to him was merely the usual demand made in this country of all returning emigrants to prove their freedom from liability to perform military service. This demand was met satisfactorily in the case of Mr. Hornik by the exhibition of his naturalization certificate, which established his American citizenship." Mr. Tower, min. to Austria-Hungary, to Mr. Sherman, Sec. of State,
Feb. 11, 1898, For, Rel. 1898, 15, 16. See, also, the case of Herman
“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-II ungary and was not subject to arrest upon his return nor to punishment as a deserter. This position was conceded by the Austrian authorities."
Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, May 10,
1900, For. Rel. 1900, 30, 31. “On several previous occasions the attention of Congress has been di
rected to the questions arising with Austria-Hungary growing out of arrests of returning naturalized citizens on the ground of unfulfilled military service accruing before they acquired our nationality. The progress steadily made toward their settlement has been most
satisfactory, and the published correspondence will show the disposal of a residual issue touching the treaty exemption of such citizens from liability for constructive offence in the act of emigration itself, while the understanding of the two Governments as to the class and scope of punishable acts committed by such persons prior to emigration has become more precise. In consequence, arrests on this score have become infrequent in Austria-Hungary, and release promptly follows the representations of our agents in all worthy
(Report of Mr. Olney, Sec. of State, to the President, Dec. 7, 1896, For. Rel. 1896, lxiii.)
4. BELGIAN TREATY,
“The information given below is believed to be correct, yet it is not to be considered as official, as it relates to the laws and regulations of a foreign country.
Every male Belgian must register during the calendar year in which he reaches the age of 19 years to take part in the drawing of lots for the raising of the necessary military contingent.
“ Anyone who has drawn a number which designates him for military service, or in case of his absence has had a number drawn for him by the proper authority, is punishable if he does not answer the call for service.
“ Under the terms of the convention between the United States and Belgium a Belgian naturalized as a citizen of the United States is considered by Belgium as a citizen of the United States; but upon return to Belgium he may be prosecuted for crime or misdemeanor committed before naturalization, saving such limitations as are established by the laws of Belgium.
“A naturalized American formerly a Belgian, who has resided five years in this country, can not be held to military service in Belgium
incidental obligation resulting therefrom, in the event of his return, except in cases of desertion from organized or embodied military or naval service."
Circular Notice, Department of State, Feb. 5, 1901, For. Rel. 1901, 16.
5. DANISH TREATY.
The information given below is believed to be correct, yet it is not to be considered as official, as it relates to the laws and regulations of a foreign country.
“Military service becomes compulsory to a subject of Denmark during the calendar year in which he reaches the age of 22 years.
“ In November or December of the year in which he becomes 17 years old he is expected to report for enrollment on the conscrip