Mr. Harris to Mr.
Hay.
United
States Legation,
Vienna, September 30,
1899.
No. 46.]
Sir: I have the honor to acknowledge the
receipt of your dispatch, No. 40, under date of September 11, 1899. I
note that in connection with the dispatches inclosed therein of the
United States consul at Prague, Mr. Hugo Donzelmann, he names two cases
wherein officers
[Page 69]
of Austria,
having naturalized citizens of the United States under arrest, have
refused to permit them to communicate with him or this legation, and I
am instructed to bring Mr. Donzelmann’s statements to the attention of
the Austro-Hungarian foreign office with the request that these cases be
investigated.
I beg to report on these cases as follows:
1. Case of Josef Schmid: Josef Schmid was born in Bohemia. In 1892, being
17 years of age, his father obtained from the Austrian Government a
passport for the son, good for one year, to go to Germany. Almost as
soon as the son reached Germany he emigrated to the United States. He
was naturalized in Chicago on July 13, 1899, and immediately procured a
passport and returned to the place of his nativity (Ronos by Caslan),
and was arrested for failure to perform his military duty.
On August 21 Mr. Donzelmann wrote his dispatch, No. 52, to the Assistant
Secretary of State, and also wrote to this legation, stating the arrest,
and that his father reported to him that the son was not permitted to
communicate with anybody; that he (the consul) had written to the
authorities, but no answer had been made to his letter.
On the 26th following he wrote again, saying he had that day received a
letter from the prisoner asking for the interposition of the United
States Government. This letter was received on the 28th. And on the next
day I instructed Mr. Donzelmann to visit the prisoner and report the
facts to me.
On September 1 he reported that he had visited the prisoner, and found
that he had been tried and convicted on August 26. He also said: “I
investigated the claim that Schmid was not permitted to correspond with
anyone, nor to see anyone, and the court informed me that such was
usually the case as long as a prisoner was being held under the orders
of the investigating judge.”
Thereupon I framed a note to Count Goluchowski, stating the facts,
pointing out that the arrest and sentence were in violation of the
treaty of September 20, 1870, and asked for an immediate release.
I also stated that the consul at Prague informed me that “He (Josef
Schmid) was held in close confinement and refused the right to
communicate with the United States consul at Prague until August 26, the
day of his trial and conviction.” In the meantime Mr. Donzelmann was
actively at work, having promptly taken the proper steps to bring the
case before the attorney-general in Prague. And on September 11, he
wrote me, that officer said the conviction was in violation of the
treaty, but he was impotent to set the sentence aside; that this power
resided only with the attorney-general of Austria in Vienna, who must
present the matter to the court of cassation.
On the next day (12th) I wrote a second note to the Count Goluchowski,
stating the facts as above and concluding: “I earnestly protest against
this delay. I confidently submit to your excellency that the entire
proceedings are null and void under the treaty of 1870. And I entertain
no doubt that your excellency will direct that Mr. Schmid be at once
released from prison and restored to his rights as an American
citizen.”
He was discharged on the 15th following by the judgment of the court of
cassation. A translation of the judgment is inclosed herein.
On the 20th of September the Austro-Hungarian foreign office addressed a
note to this legation, denying that there had been any
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useless delay, stating that Schmid could
make a claim for damages for the unlawful sentence under the law of
March 16, 1892 (Imperial Law Bulletin, No. 64), and denying that he had
been prevented from communicating with the consul, and supporting the
denial by an affidavit of Schmid himself.
The fact is, upon his release he was rearrested for violating a provision
of the criminal code, and this affidavit seems to have been taken while
he was in prison under the last charge.
Inclosed please find a translation of Schmid’s affidavit.
2. Blaha’s case is under examination, and will duly be presented, in
obedience to your dispatch, to the Austro-Hungarian foreign office.
I have, etc.,
[Inclosure
1.—Translation.]
In the name of His Majesty the
Emperor:
The Imperial and Royal supreme court and court of cassation has
decided this 13th day of September, 1899—under the presidency of the
Imperial and Royal first president, Dr. Habietinek, in presence of
the Imperial and Royal counselors to the court: Kittner, von Schrey,
Dreszler, Dr. von Plügl, Kossoricz, Bossoneski, Hawlath, Dr. von
Tommases, Dr. Tarlowski, the counselor of the supreme criminal
court, Beleikowski, as judge, the Imperial and Royal secretary of
the court, Krupsky, as secretary—upon the proposition of the
Imperial and Royal general procurator to nullify the sentence of the
Imperial and Royal circuit court of Kuttenberg of date of 26th of
August, 1899, No. V VI 441/20/99, by which Josef Schmid was found
guilty of the crime mentioned in paragraph 45 of the laws of the
11th of April, 1889, No. 41, and therefore sentenced according to
that paragraph to six weeks’ close confinement and a fine of 100
florins, and in case of failure to pay such fine to be imprisoned an
additional twenty days, and further, according to paragraph 389, St.
P. O., to pay the costs of the trial; after hearing the argument of
the reporter, Imperial and Royal counselor to the court Dreszler,
the reading of the note from the office of the Imperial and Royal
general procurator of the 11th of September, 1899, No. 2988, and the
argument of the Imperial and Royal general procurator, Ritter von
Cramer, as follows:
To accept the proposition of the office of the Imperial and Royal
general procurator, made by it in order to preserve the laws and to
set aside, according to paragraphs 33 and 292, St. P. O., the
sentence of the Imperial and Royal circuit court at Kuttenberg of
date 26th of August, 1899, No. V VI 441/20/99, and has reached the
following decision in the case itself:
To exculpate Josef Schmid, 24 years of age, unmarried, tailor in
Favratec, from the charge made against him under paragraph 45 of the
laws of date the 11th of April, 1889, No. 41, viz: Of having left
the territory of the Austria-Hungarian monarchy for America about
the year 1892 for the purpose of avoiding military duty here,
according to paragraph 259, No. 3, St. P. O., and to discharge him
from payment of the costs of the trial according to paragraph 390,
St. P. O.
reasons.
As shown by the documents presented, Josef Schmid, born on the 8th of
October, 1874, at Favratec (district of Caslan), used the permission
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to travel in
Austria-Hungary and Germany, issued to him on the 20th of August,
1892, to emigrate to North America (Chicago) before the period of
his liability to present himself as a recruit—beginning in 1895.
After six years’ stay in the United States he became a citizen
there. As he did not care, he states, to make his permanent
residence there, he returned to his native village in August, 1899,
in order, as he assures, to make his permanent residence there and
to perform his neglected military duty. The last intention, however,
he did not carry out.
Upon the suggestion of the bezirkshauptmannschaft at Caslan he was
arrested on the 14th of August, 1899, for having violated the
military laws, put upon trial, and sentened by the Imperial and
Royal circuit court at Kuttenburg on the 26th of August, 1899, to
six weeks’ close confinement and a fine of 100 florins, and in case
of failure to pay such fine to be imprisoned an additional twenty
days, and further, to payment of the costs of the trial, according
to paragraph 45 of the laws of date the 11th of April, 1899, No. 41.
But as—according to articles I and II of the treaty between the
United States of America and Austria-Hungary of date the 20th of
September, 1870, a copy of which is contained in No. 74 of the
Imperial Law Bulletin of the year 1871—the prosecution of said Josef
Schmid was undoubtedly illegal, and as the verdict rendered against
him was contrary to the principles of paragraph 41 of the criminal
code, it is therefore null and void according to paragraph 281, No.
9 lit C, St. P. O.
The consulate of the United States of America at Prague requested
therefore in its note of the 1st of September, 1899, under
instructions from its Government, the immediate release of Josef
Schmid. Schmid himself did not combat the sentence, and began to
serve the term of his imprisonment.
Upon the proposition of the officer of the Imperial and Royal general
procurator, the Imperial and Royal supreme court and court of
cassation declares the judgment by which the said treaty and
paragraph 41 of the criminal law were violated to be null and void,
according to paragraphs 33 and 292, St. P. O., and liberates Josef
Schmid, according to paragraph 259, No. 3, from the charge of having
violated paragraph 45 of the military laws of the 11th of April,
1889, a copy of which is contained in No. 41 of the Imperial Laws
Bulletin.
The Imperial and Royal supreme court and
court of cassation, Vienna, 13th of September,
1899.
[Inclosure
2.—Translation.]
Circuit Court at Kuttenberg, 12th
September, 1899.
- In presence of
- Counselor of the supreme court, Hoffmann.
- Ansenlant, Vitek.
Subject: Examination of Josef Schmid (Smid).
Josef Smid, summoned to state whether he has been denied permission
during the period of his arrest for examination, either by the
district court at Caslan or by this court, to write to the American
consul at Prague, declares as follows:
I have not expressed the wish to write to the American consul at
Prague, either at the district court at Caslan or at this court, nor
have
[Page 72]
I requested to be
allowed to come into contact with him in any way, although I did
have the intention of writing to him; but I kept postponing it, as I
did not know in what direction this prosecution would be continued,
and because I thought that as an American citizen I would not be
punished.
Therefore I declare also that nothing has been refused me; I did not
even write to a relative.
During the time of my arrest under sentence I wrote twice to the
consul and once to my father without any hindrance; and I had also
an interview with the American consul when he was at this circuit
court.
Approved after the reading.
- Josef Schmid.
- Hoffmann.
- Vitek.
