pitulations" were relied on to support the demand flous case: Austria arraigns the United States for in that year for the surrender of the Hungarian violating the rights of Turkey in the Koszta refugees; they were scrutinized, and no such affair; Turkey, the offended party, exonerates authority as is now claimed was found in them. the United States, and protests against Austria, The French and English Ministers at Constauti-our accuser, for the very same offence. nople, who advised and sustained the Sultan in These considerations have led the undersigned, resisting the demand of Austria for their extra- as he believes they will lead all others who duly dition, would not have given such advice if they reflect on them, to the confident conclusion that could have found in existing treaties any authority there exist no treaties between Austria and for that demand, or any obligation on the part of Turkey which could justify, or in any way coun the Sultan to yield to it. Lord Palmerston, then tenance, the seizure or imprisonment of Koszta her Britannic Majesty's Priucipal Secretary of by the Austrian functionaries. State for Foreign Affairs, carefully examined these treaties, and expressed his conclusions thereon in a letter to Sir Stratford Canning, dated 24th September, 1849. In this letter, which contained an extract from one of these treaties that of Belgrade-and referred to the claims of Austria founded on them, for the surrender of these refugees, he says: "The utmost that could be demanded would be that they [the refugees] should not be allowed to reside permanently in the Turkish empire."

Coming down to a later period--to the very transaction at Smyrna-abundant reasons are found for denying that Turkey was then under any treaty obligation to deliver Koszta to Austria, or that her Consul-General had authority to seize him. On this subject it is allowable to resort to the declarations of the public men of the Porte, as evidence in regard to an issue of this kind. Their explicit denial may be fairly considered as equivalent to Austria's affirmation without proof, where proof, if it existed, could be so easily adduced.

In a despatch to this Government of the 4th of August. 1853, Mr. Marsh, the American Minister Resident at Constantinople, says :

"I have had several conversations on this subject with the Minister of Foreign Affairs and with Aali Pacha, Governor of Smyrna at the time the affair took place. These distinguished persons are very far from expressing any dissatisfaction with the course pursued by us. They sustain the view the Legation has taken of the legal character of the question, and Aali Pacha informs me that a few years since the Austrian Government refused to surrender to the Porte Turkish rebels who had fled into Austria, on the very ground now taken by the Porte-namely, that the treaties did not provide for the extradition of political offenders."

But if Austria really has such authority by treaties as she now claims, it confessedly extends only to "Austrian subjects." It could not, therefore, be applied to Koszta unless he was such a subject at the time he was seized. If the question of his nationality is to be settled by international law, the only code which furnishes the rules by which this question is to be determined, there is no good reason for adjudging him to have been, when seized at Smyrna, an Austrian subject. But settle this question, as Austria would have it settled, by an appeal to her own civil code, the result will be the same.

By the consent and procurement of the Emperor of Austria, Koszta had been sent into perpetual banishment. The Emperor was a party to the expulsion of the Hungarian refugees from Turkey. The sovereign by such an act deprives his subjects to whom it is applied of all their rights under his Government. He places them where he can not, if he would, afford them protection. By such an act he releases the subjects thus banished from the bond of allegiance. Any other result would make the political connection between the subject and the sovereign a state of unmitigated vassalage, in which all the duties and no rights would be on one side, and all the rights and no duties would be on the other. Koszta must be regarded as having been banished by Austria; for he was one of the Hungarian refugees whom she procured to be expelled from Turkey in 1851. They were released from confinement at Kutaitia, on condition of submitting to perpetual banishment, and she had two persons present at their departure "who claimed and obtained there an active share in the arrangements." Koszta could never thereafter be rightfully demanded as an Austrian subject.

The proposition that Koszta at Smyrna was not an "Austrian subject" can be sustained on another ground. By a decree of the Emperor of Au-tria of the 24th of March, 1832, Au-trian subjects leaving the dominions of the Emperor without permission of the magistrate and a release of Austrian citizenship, and with an intention never to return, become " unlawful emigrants," and lose all their civil and political rights at home.-(Eucy. Amer. Tit. Emigration, 2 Kent's Com., 50, 51.)

Mr. Brown, the Chargé d'Affaires ad interim of the United States at Constantinople, writes that in an interview with Chehil Effiudi, al-o a Turkish officer of high rank and great experience, in which the affair at Smyrna was discussed, he observed that "the Austrian Government does not possess the power by treaty to arrest any one on Ottoman soil for political offences." There is now, however, something more decisive from Turkey than the opinion of her public men in opposition to this treaty-claim of Austria. The Koszta had left Austria without permission, Government of the Porte has pronounced a and with the obvious and avowed intention never judgment in relation to the seizure of Koszta, to return: he was, therefore, within the strict which Austria herself is bound to respect. It has meaning of the imperial decree, "an unlawful protested against the conduct of the Austrian emigrant." He had incurred and paid the penalty agents in that affair as unlawful and a violation of that offence by the loss of all his civil and of its sovereignty; but not one word of com-political rights. If he had property, it had esplaint, not a murmur of dissatisfaction, from cheated, and he was reduced to a state worse Turkey against the conduct of the functionaries than absolute alieuage; for aliens have, by right, of the United States at Smyrna, has yet reached the benefit of the civil laws for protection, in this Government. This is certainly an anoma- whatever country they may be. Stripped by this

imperial decree of civil and political rights, Kosz-of his own doom by the knowledge of the sad ta had, in Austria, no redress for personal wrongs, fate of so many of his unfortunate companions. and abroad he had no claim to protection from In this forlorn condition he could not have intendthe government that would still hold him as a ed, by the language ascribed to him, to acknowlsubject. He was, in regard to Austria, an outlaw.edge any unbroken tie which then bound him to What right can a sovereign have to the allegiance the Emperor of Austria. of a person reduced by him to such a miserable. condition? It seems to have been the very object of the Austrian decree to dissolve the previous political connection between the "unlawful emigrant" and the Emperor. In Koszta's case it was dissolved.

The undersigned is brought, by a fair application of sound principles of law, and by a careful consideration of the facts, to this important conclusion-that those who acted in behalf of Aus tria had no right whatever to seize and imprison Martin Koszta.

Some importance seems to be attached to Kosz- It will be conceded that the civil authority of ta's own opinion of his citizenship. The note Turkey during the whole period of the occur of Mr. Hulsemann conveys the impression, though rences at Smyrna was dormant, and in no way it does not contain the express averment, that called into action. Under these circumstances he acknowledged himself to be a subject of the Austria without any authority-Turkey exerciEmperor of Austria. The passage, when closely sing none-and the American functionaries, as examined, shows that the alleged acknowledg- Austria asserts, having no right in behalf of their ment is only an inference from undisclosed government to interfere in the affair-(a proposi premises. The language of the note on this sub-tion which will be hereafter contested)-what, ject is the following: "The very declaration then, was the condition of the parties at the com. of that refugee on board of the Huszar, in the mencement of the outrage, and through its whole presence of the American Consul and the com- progress? They were all, in this view of the mander of the St. Louis, shows that he still con- case, without the immediate presence and considered himself as a subject of the Emperor." The trolling direction of civil or international law in declaration referred to in support of this infer-regard to the treatment of Koszta. The Greek ence is not given, but it is undoubtedly the re-hirelings, Koszta their victim, aud the Austrian sponse Koszta is reported to have made when and American agents, were, upon this supposiinterrogated as to his being an American citizen: tion, all in the same condition at Smyrna in re"I am a Hungarian, and will live and die a Hun- spect to rights and duties, so far as regards that garian," Mr. Brown, the Chargé d'Affaires ad transaction, as they would have been in if it had interim of the United States at Constantinople, occurred in their presence in some unapprowho was not at Smyrna at any time during the priated regions lying far beyond the confines of transaction in relation to Koszta, stated in a let any sovereign state whatever; they were the ter to Baron de Bruck something like the fore- liege subjects of the law of nature, moral agents, going declaration; but Captain Ingraham, who bound each and all alike to observe the precepts was present, as Mr. Hulsemann states, when of that law; and especially that which is confirm Koszta was examined, and made the declaration ed by Divine sanction, and enjoins upon all men imputed to him, says, in writing to the Minister everywhere, when not acting under legal reResident of the United States: "I am astonished straints, to do unto others whatsoever they would to see by Mr. Brown's letter that Koszta declared that others should do unto them; they were himself on our first interview a Hungarian, I did bound to do no wrong, and to the extent of their not hear him say so." It may well be doubted means to prevent wrong from being done; to prowhether Koszta ever used any such language. tect the weak from being oppressed by the strong, Should it, however, be admitted that he did make and to relieve the distressed. In the case sup that or a similar declaration, it can not be posed, Koszta was seized without any rightful fairly understood to imply an acknowledgment authority. He was suffering grievous wrongthat he was then a subject of the Emperor of any one that could might relieve him. To do εo Austria. To apprehend rightly what he meant was a duty imposed under the peculiar circumby such a declaration, it is proper to consider stances of the case by the laws of humanity. his situation, his known sentiments, and his an- Captain Ingraham, in doing what he did for the tecedents. In his mind no two things could release of Koszta, would, in this view of the case, probably be more distinct from each other than be fully justified upon this principle. Who, in Austria and Hungary. One was an object of his such a case, can fairly take offence? Who have aversion the other an object of his love. His a right to complain? Not the wrongdoers surely, affections clustered around the land of his birth, for they can appeal to no law to justify their and were the more intense because he thought that country had been cruelly wronged, and he knew it was unfortunate. In his visions of the future he saw a happier destiny for Hungary. He saw her standing proudly among the independent nations of the earth, under a clement government emanating from the will of the people, and dedicating its constitutional authority to their general welfare. In the fallen condition of Hungary he thought it base to disown her, and glorious to claim her for the land of his birth. His situation, when this declaration is supposed The genuineness of the certificate which he to have been made, is also to be regarded in in-produced when he claimed protection as an terpreting his words. He was in the hands of American citizen has been questioned, in conse Austrian agents, loaded with fetters, and warned!quence of the imperfect copy given by Mr. Brown

conduct. They can derive no support from civil authority, for there was none called into action; nor from the law of nature, for that they have violated.

To place the justification of the American agents still further beyond controversy, the undersigned will now proceed to show that Koszta, when he was seized and imprisoned at Smyrna, had the national character of an American, and the gov ernment of the United States had the right to ex tend its protection over him.

to the Austrian internuncio; but that which he produced to the American con-ul at Syrua, and to Captain Ingraham, to the commander of the Austrian brig Huszar, and to the Austrian Consul-General, was genuine. A correct copy of it has been sent to this department, and ver.fied by a comparison with the record of the court in New York in which Ko-zta made his declaration in due form of law. To remove all doubt on this subj c', a certified copy of that record is annexed to this communication.

If Koszta ever had a domicil in the United States, he was in virtue thereof invested with the nationality of this country, and in this character continued as long as that domicil was retain d. There are cases in which it is difficult to settle the question of domicil; but that of Koszta is not one of them. The most approved defit .tions of a domicil are the following:

"A residence at a particular place, accompanied with positive or presumptive proof of continuing It is not contended that this initiatory step in 349.) If it sufficiently appear that the intention there for an unlimited time." Binney's Reports, the process of naturalization invested him with of removing was to make a permanent settlement, all the civil rights of an American citizen; but or for an indefinite time, the right of domicil is acit is sufficient for all the purposes of this case to quired by a residence of a few days." (The Venus, show that he was clothed with an American nation & Cranch. 279.) "Vattel has defined domicil to be ality and in virtue thereof, the government of a fixed residence in any place, with an intention the United States was authorized to extend to statement. It would be more correct to say that that of always staying there. But this is not an accurate him its protection, at home and abroad. Mr. Hulsemanu, as the undersigned believes, falls into place is properly the domicil of a person in which a great error-an error fatal to some of the most ton of removing therefrom." (Story's Con. of his habitation is fixed, without any present intenimportant conclusions-by assuming that a nation Laws, 243.) can properly extend its protection only to native-country, settles himself there, and engages in the "A person who removes to a foreign born or naturalized citizens. This is not the doc-trade of the country, furnishes by these acts such trine of international law, nor is the practice of evidence of an intention permanently to reside nations circumscribed within such narrow limits. there as to stamp him with the national character This law does not, as has been before remarked. of the state where he resides." (The Venus, 8 complicate questions of this nature by respect for Cranch, 279.) municipal codes. In relation to this subject, it Apply these principles to the case under conhas clear and distinct rules of its own. It gives sideration, and the inevitable result is that Koszthe national character of the country not only to ta had a domicil in the United States. He came native-born and naturalized citizens, but to all to and resided in this country one year and elev residents in it who are there with, or even with-en months. He came here with the intention out an intention to become citizens, provided of making it his future abode. This intention they have a domicil therein. Foreigners may, was manifested in several ways, but most sig and often do, acquire a domicil in a country, even nificantly by his solemn declaration upon oath. though they have entered it with the avowed in-There can be no better evidence of his design of tention not to become naturalized citizens, but to return to their native land at some remote and uncertain period; and whenever they acquire a domicil, international law at once impresses upon them the national character of the country of that domicil. It is a maxim of international law that domicil confers a national character; it does not allow any one who has a domicil to decline the national character thus conferred; it forces it upon him often very much against his will, and to his great detriment. International law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to re-pect him, in regard to The next question is, was Koszta clothed with protection as an American citizen. It concedes that character when he was kidnapped in the to every country the right to protect any and all streets of Smyrna, and imprisoned on board of who may be clothed with its nationality. These the Austrian brig-of-war Huszar? The national are important principles in their bearings upon character acquired by residence remains as long the qu8 ions presented in Mr. Hulsemann's not as the domicil continues, and that continues not and are too obvions to be contested; but as they only as long as the domiciled person continues are opposed to some of the positions taken by in the country of his residence, but until he acAustria, the undersigned deems it respectful inquires a new domicil. The law as to the continsuch a case to sustain them by reference to au-nance and change of a domicil is clearly stated thorities. in the following quotation from an eminent ju rist:

"The position is a clear one, that if a person goes into a foreign country and engages in trade there, he is, by the law of nations, to be considered a merchant of that country, and a subject for all civil purposes, whether that country be hostile or neutral." (1 Kent Com. 75.)

Again: the same authority says, that "in the law of nations, as to Europe, the rule is, that men take their national character from the general character of the country in which they reside." (fbid, 78.)

making the United States his future home than such a declaration; and to this kind of evidence of the intention, the indipensable element of the domicil, civilians have always attached importance. (Phillimore, § 188.) In the case of Koszta, we have all that is required to prove he had a domicil in the United States-the concurrence of an actual residence with the intention to make this country his future home. The establishment of his domicil here invested him with the national character of this country, and with that character he acquired the right to claim protection from the United States, and they had the right to extend it to him as long as that character continued.

a voyage to sea, or to a foreign country, for health | or. In nearly all respects his and their condition or for pleasure, or for business of a temporary na-as to the duties and burdens of government are ture, with an intention to return, such a transitory undistinguishable; and what reasons can be given residence would not constitute a new domicil, or why, so far at least as regards protection to peramount to an abandonment of the old one; for it is not the mere act of inhabitancy in a place which and property abroad as well as at home, his makes it the domicil, but it is the fact, coupled rights should not be co-extensive with the rights with the intention of remaining there, animo ma- of native-born or naturalized citizens? By the nendi." (Story's Con. of Laws, & 44.) law of nations they have the same nationality; and what right has any foreign power, for the At the very last session of the Supreme Court purpose of making distinction between them, to of the United States, a case came up for adjudi-look behind the character given them by that code cation, presenting a question as to the domicil of which regulates national intercourse? When the General Kosciusco at the time of his death. The law of nations determines the nationality of any decision, which was concurred in by all the man, foreign governments are bound to respect judges on the bench, fully sustains the correct-its decision. ness of the foregoing propositions in regard to donicil, particularly the two most important in Koszta's case: first, that he acquired a domicil in the United States; and, second, that he did not lose it by his absence in Turkey. (14 Howard's Reports S. C. U. S., 400.)

They would have no cause to complain if the protecting power should stand upon its extreme rights in all cases; but that power, in discharging its duties of protecting, may, for sufficient reasons, have some regard for the civil distinctions which its own laws make between the different classes of persons to whom it has the right, under international law, to extend its protection. It will naturally watch with more care, and may act with more vigor, in behalf of native born and naturalized citizens, than in behalf of those who, though clothed with its nationality, have not been so permanently incorporated into its political community.

As the national character, according to the law of nations, depends upon the domicil, it remains as long as the domicil is retained, and is changed with it. Koszta was, therefore, vested with the nationality of an American citizen at Smyrna, if he, in contemplation of law, had a domicil in the United States. The authorities already referred to show that, to lose a domicil when once obtained, the domiciled person must leave the country of his Giving effect to these well-established princiresidence with the intention to abandon that res-ples, and applying them to the facts in the case, idence, and must acquire a domicil in another. the result is, that Koszta acquired while in the Both of these facts are necessary to effect a United States their national character; that be change of domicil, but neither of them exists in retained that character when he was seized at Koszta's case. The facts show that he was only Smyrna, and that he had a right to be respected temporarily absent from this country ou private as such while there by Austria and every other business, with no intention of remaining perma- foreign power. The right of a nation to protect, nently in Turkey, but, on the contrary, was at and require others to respect, at home and abroad, the time of his seizure awaiting an opportunity all who are clothed with its nationality, is no new to return to the United States. doctrine now for the first time brought into opeWhenever, by the operation of the law of na- ration by the United States. It is common to al tions, an individual becomes clothed with our nations, and has had the sanction of their prac national character, be he a native-born or nat- tice for ages; but it is new that at this late period, uralized citizen, an exile driven from his early when the United States assert a claim to it as a home by political oppression, or an emigrant en common inheritance, it should at once be disticed from it by the hopes of a better fortune for covered that it is a doctrine fraught with danger, himself and his posterity, he can claim the pro-and likely to compromit the peace of the world. tection of this government, and it may respond to that claim without being obliged to explain its conduct to any foreign power, for it is its duty to make its nationality respected by other na tions, and respectable in every quarter of the globe.

The United States see no cause for aları; no reason for renouncing for themselves what others have so long and so harmlessly enjoyed.

There may be a reluctance in some quarters to adopt the views herein presented relative to the doctrine of domicil and consequent nationality, This right to protect persons having a domicil, lest the practical assertion of it might in sunie though not native-born or naturalized citizens, instances give a right of protection to those who rests on the firm foundation of justice, and the do not deserve it. Fears are entertained that claim to be protected is earned by considerations this doctrine offers a facility for acquiring a nawhich the protecting power is not at liberty to dis- tional character which will lead to alarming regard. Such domiciled citizen pays the same abuses; that under the shadow of it political ag price for his protection as native-born or natural- tators, intent upon disturbing the repose of their ized citizens pay for theirs. He is under the bonds own or other countries, might come to the United of allegiance to the country of his residence, and States with a view to acquire a claim to their pu if he breaks them incurs the same penalties; he tection, and then to return to their former sceneowes the same obedience to the civil laws, and of action to carry on, under a changed national must discharge the duties they impose on him; character, their ulterior designs with greater secuhis property is in the same way, and to the same rity and better success. This apprehen in is ins extent as theirs, liable to contribute to the sup-lieved to be wholly unfounded. The first distinct port of the government. In war he shares equally act done by them toward the accomplishment of with them in the calamities which may befall the these designs would disclose their fraudulent purcountry; his services may be required for its pose in coming to and seeking a domicl in this defence; his life may be perilled and sacrificed country. Such a development wouli effectually in maintaining its rights and vindicating its hon-disprove the fact that they acquired a domic! here,

part of the world,' into the general body and mass of the society of the nation, but they continue tional character under the general sovereignty of strangers and sojourners, not acquiring any nathe country." (1 Kent's Com., 78-'9.)

This decision has been examined and approved by the eminent jurists who have since written treatises on international law.

and with it our nationality. Without that na- This rule applies to those parts of the world from tionality they could not be considered as stand-obvious reasons of policy, because foreigners are ing under the protecting arm of the United States, not admitted there, as in Europe and the western and consequently could have no right to claim, and no reason to expect, it would be exerted in their defence. Their fraudulent intent would defeat all they could hope to gain by a residence in this country, and by insincerely professing to make it their home. The intention entertained in good The Lords of Appeals in the High Court of Adfaith to make it such a home would be wanting, miralty in England decided in 1784, that a merand without such an intention neither domicil chant carrying on trade at Smyrna, under the nor nationality can be acquired. This consider-protection of a Dutch consul, was to be consid ation should dispel all suspicions that this doc-ered a Dutchman as to his national character. trine as to nationality and protection will not be (Wheaton's Inter. Law, 384, 3 Rob. Adın. Reas safely used and as well guarded from abuse by ports, 12) the United States as it has been in times past, or may be in the future, by any other sovereign power. There is nothing in the doctrine herein maintained, or in the history of this government, According to the principle established in this to awaken the slightest apprehension that it is in case, Koszta was invested with the nationality any way inclined to extend the shield of its pro- of the United States, if he had it not before, the tection over adventurers or seditious propagand. moment he was under the protection of the Amerists, who may go from this to other countries to ican consul at Smyrna and the American legation engage in enterprises designed to interfere with at Constantinople. That he was so received is estheir political institutions, or disturb their inter-tablished by the Tezkereh they gave him, and the nal quiet. The liberal policy of the United States efforts they made for his release. The Chargé in regard to receiving immigrants from all na-d'Affaires ad interim of the United States at Contions, and extending to them the advantages of stantinople, in a letter of the 29th of June, adtheir free institutions, makes it an act of justice dres-ed to the imperial Internuncio, states: on their part to maintain the right of national protection to the full extent authorized by the law of nations, and to resist with firmness any attempt to impose new restrictions upon it.

to state that his conduct has always been irreproachable."

"It was on presenting this declaration of allegiance to the consulate of the United States of America at Smyrna, and to this legation, that the said Koszta was furnished with a Tezkerch to come There is another view of this case which places to Constantinople and to return to Smyrna, whence the conduct of the agents of this government at he was to start for New York. Since his arrival in Smyrna upon equally defensible grounds. The Turkey he has resided under the protection of my American consul there, and the American lega-government, and it is a pleasure to me to be able tion at Constantinople, acted with great caution in relation to Koszta's claim to be regarded as entitled to the protection of this government. Having been received under the protection of As his naturalization had not been perfected, these Americau establishments, he had thereby they hesitated at first to receive him under their acquired, according to the law of nations, their protection; but the facts show that they ulti-nationality, and when wronged and outraged as mately yielded to his application. He received he was, they might interpose for his liberation, from each a Tezkerck-in effect a certificate-that and Captain Ingraham had a right to co-operate the person to whom it is given is cared for, and with them for the accomplishment of that object. received under the protection of the government The exceptions taken to the manner of that cowhose agent has granted it. operation remain to be considered.

By the laws of Turkey and other eastern na- In relation to the deportment of the American tions, the consulates therein may receive under agents toward Mr. Weckbecker, the Austrian their protection strangers and sojourners whose Consul-General, the undersigned can not conreligion and social manners do not assimilate ceive that there can be any ground of complaint. with the religion and manners of those coun- Nothing done to or with him by Mr. Oly, our tries. The persons thus received become there-Consul at Smyrna, can possibly imply disrespect by invested with the nationality of the protecting to the Emperor of Austria. Neither in his priconsulate. These consulates, and other Euro- vate character, nor as a functionary of the Aus pean establishments in the East, are in the con-trian government, did Mr. Weckbecker take an stant habit of opening their doors for the recep- open or an avowed part in the opening scene of tion of such inmates, who are received irrespec- the outrage. His agency in that affair at its comtive of the country of their birth or allegiance. mencement was clandestine. This course imIt is not uncommon for them to have a large plied a consciousness on his part that the act was number of such protegés. International law rec-indefensible. The fact that he sought the aid of ognizes and sanctions the rights acquiesced by the civil authority of Turkey to get Koszta into this connection.

his possession proves that he knew the mode he resorted to for the purpose was illegal. The ap "In the law of nations as to Europe, the rule is, plication of Mr. Offley to him to assist in, and that men take their national character from the consent to. Koszta's release was certainly no general character of the country in which they re-offence, and implied no disrespect either to him side; and this rule applies equally to America. But in Asia and Africa an immiscible character is or his government.

kept up, and Europeans trading under the protec- The appeal of Mr. Brown to Captain Ingraham tion of a factory take their national character from to interpose for the liberation of Koszta, and his the establishment under which they live and trade. advice to effect it in the way it was done, must