reside thereafter unmolested in another State of the Empire, his expulsion from the former only having effect in the territory within which the authorities of that State have jurisdiction. Second. In certain other cases where the reasons for expulsion are such as would make the stay of the foreigner in any one of the States of the Empire objectionable, Imperial laws have been passed whereby an expulsion by the authorities of one State becomes effective not only in that State but within the whole Empire, thus effectually banishing the individual from Germany. Third. There is another kind of expulsion which, though in form identical with that last preceding, is so different in its real nature as to warrant its treatment as a separate class, namely, the expulsion by the Prussian authorities of persons, either individually or en masse, for certain grave reasons of state, as examples of which may be mentioned the expulsion of Poles from certain German States, of Frenchmen and others from Alsace-Lorraine, and of inhabitants of Schleswig-Holstein. These expulsions have usually been carried out by Prussia or through Prussian initiative, and take the second form above given, but for reasons which concern not only Prussia but the whole of Germany. When it is remembered that Prussia is the leading member of the German Confederation, that the King of Prussia is the German Emperor, that the chief functionaries of the Kingdom are also leading officials of the Empire, and that an expulsion by these Prussian authorities is given effect as an expulsion from the Empire by virtue of Imperial laws passed for reasons of the Imperial welfare, it will be seen that they are in substance indirect expulsions by the Empire, though in form mere State expulsions effective throughout the other States. Referring to the first class above given, namely, expulsion by a State from its own proper territory only, I take Prussia as an example, and on referring to a leading authority on Prussian State law I find the statement: "Measures of expulsion can be exercised against foreigners, partly for certain punishable acts which have been made the subject of judicial sentence, and partly as purely police measures taken in the interest of safety and order." (Rönne, "Das Staats-Recht der Preussischen Monarchie," 2 Band, 2 Abtheilung, sec. 381, p. 134.) This is also doubtless a true statement of this principle as contained in the State law of each of the other States of the German Empire. The distinction to be held in mind is whether the expulsion is to be effective as a banishment a. From the whole German Empire, or only b. From the territory of the expelling State. The power by which the authorities of any particular State are given extended jurisdiction to expel from the Empire is contained in various Imperial laws and decrees. As examples of these may be mentioned 1. Certain sections of the Reichs-Strafgesetzbuch. 2. The Imperial law regarding the expulsion of the Jesuits. 3. The Imperial law regarding the Social Democrats, etc. To sum it up, it may be said that, first, as regards the power of expulsion the respective States exercise this right by virtue of their inherent sovereign power and the usages sanctioned by international law; second, that the procedure whereby it is given effect is for the most part contained in "Administrative Bestimmungen" and "Ministerielle Erlasse," which, not being in the form of public statutes and often embodied in secret orders of the State and Imperial authorities, are not available for examination. Concerning the right of expulsion as well as the manner, the procedure above indicated has been modified in certain cases by special treaties, as, for instance, the convention between the German Empire and Russia of February 10, 1894, for the exchange of undesirable persons, subjects of either of the two countries, to the other, respectively; also a convention with Switzerland bearing date April 27, 1876. Should the Department desire further and more exact information as to the actual procedure in the matter of expulsion prevailing in the various German States, the cases in which such expulsion is given effect in the whole Empire, etc., a somewhat extended and careful examination of the question would have to be made, and this would necessarily require considerable time. Such an extended report, however, has not appeared to be called for by the Department's instruction, and I therefore beg to submit simply the above considerations. ANDREW D. WHITE. I am, etc No. 86.] MILITARY SERVICE CASE OF FRANZ RATH. Mr. Harris to Mr. Hay. UNITED STATES LEGATION, 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, SIR: You are informed herewith that the Imperial and Royal Bezirkshauptmannschaft 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. 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 AustroHungary 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. 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 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 AustroHungarian 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., JOHN HAY. OFFER AND ACCEPTANCE OF USE OF HOSPITAL SHIP MAINE FOR WOUNDED AUSTRIAN SOLDIERS. No. 115.] Mr. Herdliska to Mr. Hay. UNITED STATES LEGATION, SIR: I have the honor to inform you that this legation received a letter dated July 21, 1900, from the ladies of the executive committee of the hospital ship Maine, stating that the ship had sailed on the 12th of that month for Chinese waters, and requesting the legation to notify the Government of this country that if any of their wounded required aid they would be welcomed on board the Maine, and that every possible assistance would be given to them. A copy of this communication was inclosed in a note addressed by me to the Austro-Hungarian foreign office on July 24. On July 27 Count Szecsen, on behalf of the foreign minister, stated that the communication had been immediately brought to the attention of the naval section of the Imperial and Royal ministry of war. He at the same time requested me to express to the ladies of the executive committee the warmest thanks of the Imperial and Royal Government for their kind offer. On the following day, July 28, the committee in question was informed by letter of the steps. taken by this legation, a copy of Count Szecsen's reply (in translation) being at the same time inclosed. Copies of all the correspondence in this case are respectfully submitted herewith. I have, etc., CHARLES V. HERDLISKA. [Inclosure 1.] AMERICAN HOSPITAL SHIP MAINE, 30 Curzon street, London W., July 21, 1900. The AMERICAN AMBASSADOR TO THE COURT OF AUSTRO-HUNGARY. SIR: The ladies of the executive committee of the American hospital ship Maine desire to inform you that this ship sailed on July 12 for Chinese waters. Will you please notify the Government to which you are accredited that if any of their wounded require aid they will be welcome to the Maine, and every assistance possible will be given them. Faifthfully, yours, JENNIE RANDOLPH CHURCHILL, Chairman. [Inclosure 2.] Mr. Herdliska tɔ Count Szecsen. UNITED STATES LEGATION, YOUR EXCELLENCY: I have the honor to inclose to your excellency herein a copy of a letter received by this legation this morning from London from the chairman and honorary secretary of the American hospital ship Maine, in which the legation is informed that the Maine sailed from Southampton, England, for Chinese waters on the 12th instant, and in which the legation is requested to notify the Imperal and Royal Government that any of His Majesty's wounded in China who may require aid will be welcome to the Maine, and that every assistance possible will be given them. In having the honor and pleasure of bringing this information to the attention of your excellency, I avail myself at the same time, etc., CHARLES V. HERDLISKA. [Enclosure 3.-Translation.] Count Szecsen to Mr. Herdliska. Referring to the esteemed note of the 24th instant, Foreign Office, No. 82, the contents of which were immediately brought to the attention of the Imperial and Royal ministry of war of Austria-Hungary (marine section), the Imperial and Royal ministry of foreign affairs has the honor to most respectfully request the chargé d'affaires of the United States of America to convey to the ladies of the executive committee of the hospital ship Maine the warmest thanks of the Imperial and Royal Government for their kind offer. The undersigned avails himself at the same time, etc. For the minister: (Signed) SZECSEN. [Enclosure 4.] UNITED STATES LEGATION, LADY JENNIE RANDOLPH CHURCHILL, Chairman, and Of the Executive Committee of the American hospital ship Maine, London. LADIES: I beg to acknowledge the receipt of your very esteemed communication of the 21st instant, informing this legation that the Maine sailed for Chinese waters |