Images de page
PDF
ePub

§ 151 Q. Prussian

laws.

enrolment of the militia (k); and a proclamation of the President allowed sixty-five days to such persons to leave the country, or become liable to be enrolled by remaining. To this Great Britain acquiesced, the period allowed for departure being deemed sufficient (1). It was regarded as an established principle that a government might, by an ex post facto law, include in its conscription any persons permanently resident in its territory, provided it allowed them reasonable time and facilities for departure on the promulgation of such a law (m).

The Prussian military laws, which have now been introduced throughout the German Empire (n), declare that every German subject is liable to military service, and cannot have that service performed by deputy (0). The right to emigrate is, however, not restricted, except as regards the performance of military service (p). Permission to emigrate may be obtained, but this permission, when granted, destroys the quality of Prussian or German subject (q). It is not to be granted to males between the ages of seventeen and twenty-five, without a certificate from the military commission of their district, or to actual soldiers or officers before their discharge, or to persons convoked for military service (r). If anyone does emigrate without permission, and to avoid performing his military service, he becomes liable to a fine or imprisonment, nor does the infliction of the penalty relieve him from performing the military duties (s).

Numerous cases have occurred of Prussians evading these duties by going abroad, and then returning to Prussia and claiming to be under the protection of some foreign State. Johann Knocke, a native born Prussian, was naturalized in America, and on returning to Prussia claimed exemption from military service. Mr. Wheaton, then American Minister at Berlin, told him that as long as he was in any other country but Prussia he would be protected, "but having returned to the country of your birth, your native domicile and national character revert (so long as you remain in Prussian dominions), and you are bound to obey the laws as if you had never emigrated" (t). This rule was observed in similar cases until 1859, when the United States endeavoured to protect Hofer from the conscription. Mr. Cass asserted that "the moment a foreigner becomes naturalized, his allegiance to his native country is severed for ever" (u). This pretension, however, was not persisted in, nor did it meet with the approval of all American jurists (x). During the civil

(k) [U. S. Statutes at Large, vol. xii. p. 731].

(7) [To Lord Lyons, No. 485, 31st Aug. 1863].

(m) [Parl. Papers, 1863, N. America (No. 13), p. 34. No. 293, 27th Nov. 1862].

To Lord Lyons,

(n) [Constitution of the Empire, art. 61. Hertslet, Map of Europe, vol. iii. p. 1947].

(0) [Art. 57].

[blocks in formation]

(s) [Penal Code, April 14th, 1851].

(t) [U. S. Senate Documents, 1859-60, vol. ii. p. 6. See other cases,

ibid. pp. 9-57, p. 1364; and Nat. Comm. Rep. p. 53].

(u) [Ibid., p. 133].

(x) [Halleck, p. 700].

[ocr errors]

war, it being found that many persons quitted the United States to escape the conscription there, and then applied to that government to save them from serving in the Prussian army, Mr. Judd, American Minister in Prussia, was instructed not to interfere on behalf of such "worthless citizens" (y). On the 22nd February, 1868, a treaty was signed between the United States and the North German Confederation, containing terms similar to that between the United States and England, except that residence for five years in the country adopted is required in order to entitle the individual to its protection (2).

England has acted upon similar principles respecting Prussians who British have claimed exemption on the ground of being British subjects. In subjects in 1862, Mr. Crossthwaite, Her Majesty's Consul at Cologne, who had Prussia. naturalized himself in Prussia, was informed by Her Majesty's Government that his sons were liable to military service while they remained

in Prussia (a).

of natura

lization in

Germany.

A foreigner is not permitted to naturalize himself in Germany unless Conditions (1) by the law of his own country he is capable of contracting, or if incapable, has obtained the consent of his parent or guardian, (2) unless his conduct has been irreproachable, (3) unless he will be received and find an abode at the place where he proposes to settle, (4) and unless he will be able to live so as to support himself and family (b).

§ 151 R. Cases of Kozta and

Martin

The cases of Martin Kozta and Simon Tousig were instances of Austrian subjects leaving their country, and claiming the protection of the United States, after having only declared their intention of being naturalized in America. Kozta was a Hungarian refugee of 1848-9. Simon He went to Turkey and was imprisoned there, but released on condition Tousig. of leaving the country. He then went to America and declared his intention of being naturalized. In 1853 he went to Smyrna, and obtained from the United States Consul a travelling pass, stating he was entitled to American protection. While there, he was seized by some persons in the pay of Austria, who took him out in a boat and threw him into the sea, whence he was picked up by the Hussar, an Austrian ship of war. The American Consul demanded his release, but this being refused, an American ship of war, the St. Louis, was sent to take him by force if his detention was still insisted on. The matter was compromised by Kozta being shipped off to the United States, while Austria reserved the right to proceed against him if he returned to Turkey. Mr. Marcy, in his despatch to the Austrian Government, justly affirmed that whether Kozta was entitled to American protection or not, Austria had no right to seize him upon Turkish soil, and in spite of the protests of the Turkish Government (c). Simon Tousig on Simon returning to Austria was arrested for offences committed before he had Tousig.

(y) [U. S. Dipl. Cor. 1863, Pt. II. p. 1020].

() [U. S. Statutes at Large, vol. xv. p. 615; and see Nat. Comm. Rep. p. 149. For the English treaty see Appendix A, 35 & 36 Vict. c. 39, schedule]. (a) [Nat. Comm. Rep. p. 73].

(b) [Imperial Law, 1st June, 1870. See Revue de Droit Int. 1876, p. 206]. (c) [State Papers, vol. xliv. pp. 925-1042. Wheaton, by Dana, p. 146. Westlake, § 54].

Case of
Heinrich.

§ 151S. Law of France.

Case of
Lucien
Alibert.

Case of
Ignacio
Tolen.

left that country. Mr. Marcy declined to interfere for him, on the ground that "having once been subject to the laws of Austria, and while under her jurisdiction violated those laws, his withdrawal from that jurisdiction and acquiring a different national character would not exempt him from their operation whenever he again chose to place himself under them" (d). Another case occurred in 1873. François A. Heinrich was born in New York of Austrian parents, who were not naturalized in the United States, and three or four years after his birth he was taken to Austria. On becoming of age he claimed to be exempt from serving in the Austrian army, but the United States declined to interfere on his behalf, he being taken to have expatriated himself (e).

The law of France requires every Frenchman to perform military service in person (ƒ), and imposes a penalty on any one who emigrates without having served his time in the army. But the law also provides that no one but a Frenchman can be admitted into the French army (g), and the quality of Frenchman is ipso facto lost by naturalization abroad (h). Thus an insoumis, or person who fails to join his standard when called upon, ceases to be liable to the conscription on acquiring a foreign nationality, although he still remains subject to the penalty for evading the military law. If, however, he remains abroad for three years from the date of his naturalization, his offence is purged by prescription, and it appears that he may then return to France free from all liability (i). Lucien Alibert, a French subject, went to America in 1838 at the age of 18. In 1846 he was naturalized in the United States, and on returning to France in 1852 he was arrested as an insoumis. He pleaded his naturalization in America, and though at first convicted, the sentence was quashed by the superior military court of Toulon, on the ground. that more than three years had elapsed from the time when he was naturalized to the date of his return to France (k).

In the case of Ignacio Tolen, a Spaniard, Mr. Webster said, that if the law of Spain had not permitted him to renounce his allegiance, he must expect it to deal with him as with a subject when he placed himself within its reach (1).

[blocks in formation]

CHAPTER III.

RIGHTS OF EQUALITY.

§ 152. Natural equality of

THE natural equality of sovereign States may be modified by positive compact, or by consent implied from constant usage, so as to entitle one State to superiority over another States in respect to certain external objects, such as rank, titles, and other ceremonial distinctions.

modified by compact and usage.

Royal

Thus the international law of Europe has attributed to cer§ 153. tain States what are called royal honours, which are actually honours. enjoyed by every empire or kingdom in Europe, by the Pope, the grand duchies in Germany, and the Germanic and Swiss confederations. They were also formerly conceded to the German empire, and to some of the great republics, such as the United Netherlands and Venice.

These royal honours entitle the States by whom they are possessed to precedence over all others who do not enjoy the same rank, with the exclusive right of sending to other States public ministers of the first rank, as ambassadors, together with certain other distinctive titles and ceremonies (a).

Among the princes who enjoy this rank, the Catholic powers concede the precedency to the Pope, or sovereign pontiff; but Russia and the Protestant States of Europe consider him as bishop of Rome only, and a sovereign prince in Italy, and such of them as enjoy royal honours refuse him the precedence.

The Emperor of Germany, under the former constitution of the empire, was entitled to precedence over all other temporal princes, as the supposed successor of Charlemagne and of the Cæsars in the empire of the West; but since the dissolution.

(a) Vattel, Droit des Gens, tom. i. liv. ii. ch. 3, § 38. Droit des Gens Moderne de l'Europe, liv. iii. ch. 2, § 129. Gens Moderne, pt. ii. tit. i. ch. 3, §§ 91, 92. Heffter, § 28.

Martens, Précis du
Klüber, Droit des

§ 154. Precedence among

princes and

states en

joying royal honours.

of the late Germanic constitution, and the abdication of the titles and prerogatives of its head by the Emperor of Austria, the precedence of this sovereign over other princes of the same rank may be considered questionable (b).

The various contests between crowned heads for precedence are matter of curious historical research as illustrative of European manners at different periods; but the practical importance of these discussions has been greatly diminished by the progress of civilization, which no longer permits the serious interests of mankind to be sacrificed to such vain pretensions.

§ 155. The text-writers commonly assigned to what were called The great Republics. the great republics, who were entitled to royal honours, a rank inferior to crowned heads of that class; and the United Netherlands, Venice, and Switzerland, certainly did formerly yield the precedence to emperors and reigning kings, though they contested it with the electors and other inferior princes entitled to royal honours. But disputes of this sort have commonly been determined by the relative power of the contending parties, rather than by any general rule derived from the form of government. Cromwell knew how to make the dignity and equality of the English Commonwealth respected by the crowned heads of Europe; and in the different treaties between the French Republic and other powers, it was expressly stipulated that the same ceremonial as to rank and etiquette should be observed between them and France which had subsisted before the revolution (c).

§ 156. Monarchs

not crowned and semisovereigns.

Those monarchical sovereigns who are not crowned heads, but who enjoy royal honours, concede the precedence on all occasions to emperors and kings.

Monarchical sovereigns who do not enjoy royal honours yield the precedence to those princes who are entitled to these honours.

Semi-sovereign or dependent States rank below sovereign States (d).

(b) Martens, § 132. Klüber, § 95. [Especially since 1866, when Austria was excluded from taking part in the affairs of Germany.]

(c) Treaty of Campo Formio, art. 23, and of Luneville, art. 17, with Austria. Treaties of Basle with Prussia and Spain. Schoell, Histoire des Traités de Paix, tom. i. p. 610. Edit. Bruxelles.

(d) Klüber, § 98.

« PrécédentContinuer »