[Inclosure 3.] Messrs. Hobbs && Gifford to Mr. Tower. NEW YORK, August 19, 1898. . DEAR SIR: We have duly received your esteemed favor of July 22 last in answer to ours of June 16 relating to the case of Mr. Erminio Demartini, who desires to be relieved from the liability to serve in the Austrian army upon the ground that he is an American citizen and not liable to such service. As requested by you, we now send you an exemplified copy of the naturalization papers of Mr. Francesco Demartini, the father of Erminio, and we also forward several affidavits which, we suppose, establish the necessary facts as a basis for your application to the proper Austrian authorities, the copies of the naturalization papers and the affidavits being so authenticated as to make them available for use in the Austrian Empire. You will be good enough to accept our thanks for your courtesy in this matter and to permit us to express the hope that you may be able to give it still further attention. Yours, very truly, HOBBS & GIFFORD. [Inclosures.] 1. Authenticated copy of the certificate of naturalization of Francesco Demartini issued to him by the superior court of the city of New York (now the supreme court of the State of New York, first judicial district) on the 15th day of October, 1868. 2. Affidavit of James Divisich, of the city of New York, N. Y., as to the American` citizenship of Francesco Demartini. 3. Affidavit of Henry P. Berti, of the city of New York, N. Y., as to the American citizenship of Francesco Demartini. 4. Affidavit of Edward H. Hobbs, of New York City, N. Y., as to the American citizenship of Francesco Demartini and his son, Erminio Demartini. 5. Affidavit of Erminio Demartini, of the city of New York, N. Y., as to his own as well as his father's American citizenship. [Inclosure 4.] The Legation to the Foreign Office. UNITED STATES LEGATION, YOUR EXCELLENCY: Representations have been made to this legation on behalf of Mr. Erminio Demartini, a citizen of the United States of America, who declares that his name is carried upon the list of persons liable to be called to perform military service in the Imperial and Royal Army of the Austro-Hungarian Empire. The facts of the case are as follows: The said Erminio Demartini was born in the city of Brooklyn, in the State of New York, on the 7th day of November, 1875; he was the son of Francesco Demartini, now deceased, a native of Trieste, who emigrated to the United States, and who was admitted to citizenship before the superior court of the city of New York the 15th day of October, 1868, as is shown by the records of the said court. Under the laws of the United States, therefore, Mr. Erminio Demartini is a citizen of the United States, he having been born and having resided within the jurisdiction of the United States subsequently to the naturalization of his father. The said Erminio Demartini came to Austria with his father in the year 1886, and remained at Trieste until 1896, when he returned to his home in America. He is now in Brooklyn, in the State of New York, where he resides. Mr. Demartini declares that during his visit to Trieste, above referred to, his name was placed upon the military lists there, and that it has never been stricken off, although he has in fact never been liable to military duty in Austria. He further declares that he is desirous of making a visit to his mother, who still remains in Trieste, but fearing an arrest upon a charge of desertion through the erroneous inscription of his name upon the military lists, if he should come within the Austrian jurisdiction, he has appealed to this legation for relief. I have the honor to request that your excellency will have this subject examined into by the proper authorities, and if the facts prove to be true as they have been here presented, that the name of this American citizen may be removed from the lists of those liable to perform military service within the Imperial and Royal Empire. I avail myself, etc., [Inclosure 5.] CHARLMAGNE TOWER. The Legation to Messrs. Hobbs & Gifford. UNITED STATES LEGATION, Vienna, October 18, 1898. DEAR SIRS: I have duly received your letter of the 19th of August with an exemplified copy of the naturalization papers of Francesco Demartini and the affidavits relating thereto, which you inclosed in it. At your request I have presented the case of Mr. Erminio Demartini to the Austro-Hungarian ministry of foreign affairs, and have asked that his name shall be stricken from the military lists at Trieste, on the ground that as an American citizen he is not liable to perform military duty within the Empire. Cases of this kind require considerable time in Austria. It may be several months before a reply is sent to this legation. I shall notify you, however, immediately upon its receipt. I am, etc., CHARLEMAGNE TOWER. [Inclosure 6.-Translation.] The Austro-Hungarian Foreign Office to the Legation. In reference to the esteemed note No. 82 of the 18th of October, 1898, the Imperial and Royal ministry of foreign affairs has the honor to inform the legation of the United States of America that, according to an investigation undertaken by the Imperial and Royal ministry of national defense, it appears that Erminio Demartini, who was born in 1875 and is now residing in Brooklyn, was actually placed upon the list of those liable to military duty in the city of Trieste, and that he was summoned there as a conscript on the 2d of March, 1896, and proclaimed a deserter from the Ninth Regiment of the Imperial and Royal artillery division. The chief cause of this proceeding was that Erminio Demartini himself never offered an objection to being treated as an Austrian subject liable to military service, and the city magistrate of Trieste had no knowledge of the fact that Francesco Demartini, formerly residing in Trieste and now deceased, had been admitted to citizenship in the United States of America prior to the birth of his said son. Now that Erminio Demartini is to be regarded and treated, however, as an American citizen, as appears from the esteemed note above referred to, the provincial government of Trieste has been instructed by the ministry of national defense to take immediate steps to remove his name from the army lists, according to the provisions of articles 1 and 6 of paragraph 56 of the Army Laws, Part II. Vienna, January 14, 1899. [Inclosure 7.] WELSERSHEIMB. The Legation to Hobbs & Gifford. UNITED STATES LEGATION, DEAR SIR: I have the pleasure of informing you that, upon the intervention of this legation the Government of Austria-Hungary has recognized the American citizenship of your client, Mr. Erminio Demartini, and has ordered his name to be stricken from the list of deserters from the Austro-Hungarian army at Trieste. Mr. Demartini's case has been duly reported by me to the Department of State at Washington. Very respectfully, yours, CHARLEMAGNE TOWER. KILLING OF AUSTRO-HUNGARIAN SUBJECTS AT LATTIMER, PA.1 No. 732.] Baron von Riedenau to Mr. Hay. IMPERIAL AND ROYAL MR. SECRETARY OF STATE: As I had the honor to inform you on the 11th of February last, I laid your note of the 4th of that month, relative to the awarding of a suitable indemnity to the families of the victims of the catastrophe at Lattimer-Hazelton, before my Government. My Government has most carefully examined the reply communicated by the aforesaid note in a thoroughly impartial manner, but after an 1See Foreign Relations 1898, p. 46. attentive study thereof has, to its regret, reached the conclusion that the reply of the Federal Government (which, on the basis of its views concerning the facts and the law in the case, reaches the conclusion that our demand for an indemnity must be rejected as unwarranted) is such, both in its nature and especially in regard to the grounds alleged, that we are unable to accept it, and consequently can not consider the case as having been thus settled. Immediately after the unfortunate occurrence of September 10, 1897, we informed the United States Government of the investigation concerning the disaster at Lattimer, which had been held on the spot by our representatives by taking a number of sworn depositions of disinterested and impartial eyewitnesses, and on the basis of the result of that investigation we requested the Government of the Union to order an accurate investigation of the facts in its turn, and (eventuellement) to grant a suitable indemnity to the Austrian and Hungarian subjects who had been killed or wounded in consequence of the disturbances at Lattimer, or to their families. The United States Government, which answered our first communication to it with the prompt assurance that the matter would be carefully investigated, as its importance demanded, nevertheless did not send us any communication until some time had elapsed, and, in the communication which it then sent, it confined itself to informing us of the inquiries made by the governor of Pennsylvania, and declared that it would await the result of the trial of Sheriff Martin and his deputies before taking a positive attitude with regard to the question of indemnity. After a further lapse of time, during which the trial took place at Wilkesbarre, the United States Government, without adding a single word of its own, sent us the report which had been made by the delegate of the Federal Government who had been sent to attend the trial. Finally, the esteemed reply of the Department of State, of February 4, 1899, was received by us. In that reply the Federal Government points out the facts of the case merely by referring to the result of the trial, and, in connection therewith, expresses certain views as to the principle involved, on which it bases its rejection of our claims. This treatment of the case by the United States Government may be viewed from the standpoint which we took from the outset in relation to the matter. We have maintained since this case has occupied our attention, that, after the positive result of the investigation held by us, the action of the American officers at Lattimer, whereby a number of our countrymen were either killed or severely wounded, is of such a nature as, from an international point of view, to furnish a basis for a claim from the responsible American authorities for an indemnity to the victims of an offense committed by State officers. In accordance with this view, it was claimed by us both before the trial of Sheriff Martin and the deputies and afterwards that, as regarded our demands, the proper thing to be done was to determine whether the sheriff and his men, in their capacity as public officers, had acted in such a manner as to render themselves guilty of a violation of duty, or at least of overstepping the bounds of their powers, and whether an injury had been the outgrowth thereof, and if so, that we must hold the Government that was answerable therefor, and (since in the present case foreign subjects were concerned) that we must hold the Federal Government responsible for an indemnity. We claimed this whether Sheriff Martin and his deputies were or were not found guilty of the crime of murder with which they were charged. That this view of ours was not regarded by the Federal Government as one that was to be rejected by it at the outset is shown beyond a doubt by the fact that after the acquittal of the sheriff and his deputies by the jury at Wilkesbarre, Mr. Day, then Secretary of State for Foreign Affairs, declared that he still considered this question an open one. In accordance with the attitude taken by us, we informed the United States Government of the result of the investigations held by us concerning the occurrences at Lattimer, and, as a necessary consequence thereof, asked for a careful investigation of the case by the Government. This request of ours was not complied with, and all that is alleged by the Federal Government in its final reply with regard to the facts (without going into a critical refutation of the facts presented by us as the result of our inquiries) is based solely upon the facts as elicited in the courts of the trial of Sheriff Martin and his deputies. The object of the prosecution in the elicitation of the facts at the trial could, of course, be simply to show by the aid thereof that Sheriff Martin and his deputies were guilty of the crime of murder with which they were charged. On the part of the defense, on the other hand, the object had in view was necessarily to show, by the testimony of the witnesses who were produced for the defense, that there was no legal evidence that murder had been committed, so as to secure the acquittal of the accused persons of the crime with which they were charged. No importance, however, was attached by anyone to showing (and this is of the highest importance as regards our claim) whether any offense had been committed by the public officers in the performance of the official duties with which they were charged in one way or another any offense, I say, which, outside of the trial and independently thereof, must be followed by consequences. An examination of the facts from this latter point of view was, however, in the present case, the more necessary, since, as regards the conduct of the criminal proceedings, the Department of State does not hesitate to admit that while there was no interference with the performance of the duty of the judges and juries, still, in the general feeling of the country, an excitement was manifested which gave rise to an unmistakable prejudice, although, it is added, such prejudice "can not be justly characterized as prejudice in the judicial sense of that term." We thus stand facing the fact, on the one hand, that a thorough investigation of the case, the result of which would have deprived our investigations of all their force, was not held by the Federal Government; and, on the other hand, we stand facing the verdict of a jury which was not wholly uninfluenced by human feelings and considerations. We can therefore by no means reach the conviction that the facts presented by us have lost their weight, and that by the sentence which was pronounced a decision was reached which positively settles this question so far as we are concerned; still less can we admit that this decision was one that excludes diplomatic negotiations in the case. Under these circumstances we can not do otherwise than establish FR 99- -3 |