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to ask for the release of Koszta, upon the plea that he had taken some steps to be admitted as an American citizen. Baron de Bruck replied to this request on the same day, refusing to comply with it. Two days after, Mr. Brown returned again to the charge, by forwarding to Mr. de Bruck a copy of a declaration purporting to have been signed by Koszta, in New York, on the 31st day of July last, and which the chargé d'affaires of the Union seems to regard sufficient to imply the naturalization of that refugee in America.
Even admitting the authenticity of this declaration, and supposing that Koszta could, without violating the laws of his country of his own accord, and without any other formalities, have broken asunder the ties which bind him to his native soil, the text of the document shows that the author of it has done nothing more than to declare his intention of becoming a citizen of the United States, and, with that object in view, of renouncing his rights of nationality in the States of the Emperor.
“ A few days later, a new and lamentable episode occurred to aggravate the question. On the morning of the 2d of July, the commander of the American sloop-of-war · St. Louis,' Mr. Ingraham, sent a message to the commanding officer of the 'Huszar,' to the effect that, in pursuance of instructions received from the chargé d'affaires of the United States at Constantinople, he had to call upon him to deliver the aforesaid Koszta into his hands; adding that if he did not receive a satisfactory answer by 4 o'clock in the afternoon, he should cause the prisoner to be taken away by main force. As it was reasonable to expect, our commander, instead of complying with this request, prepared himself to repulse force by force; and when, at the hour designated, the American commander, getting ready to carry out his threat, ranged himself alongside our vessel and brought his guns to bear upon the Imperial. brig, and was about to carry matters to the last extremity, our brave sailors, although much inferior in numbers, were determined to oppose a vigorous resistance to the act of aggression which was on the point of being consummated in the neutral port of Smyrna, and on the part of a vessel of war belonging to a power with which Austria was at peace. Our consul-general only succeeded in preventing this bloody catastrophe, which would probably have ended in the destruction of a considerable portion of the town of Smyrna, and of vessels of all nations in the harbor, by consenting that Koszta should temporarily, and until the settlement of the difficulties of which he was the subject, be confided to the custody of the consul-general of France, at Smyrna.
“ In our opinion, Koszta has never ceased to be an Austrian subject. Everything combines to make the Imperial Government persist in this estimate of the matter. The laws of his country are opposed to Koszta's breaking asunder of his own accord, and without
having obtained permission to expatriate himself from the authorities of that country, the ties of nationality which bind him to it.
The undersigned thinks he may dispense entering into any further details in regard to this question, seeing that the Department of State of the United States constantly refuses to grant passports to individuals who find themselves in this category, and that official publications have been made from time to time to that effect.
" As there can be no doubt, therefore, concerning the question of nationality, the consul-general of the Emperor at Smyrna was without doubt perfectly justified, when, in virtue of those treaties, which subject Austrian subjects in Turkey to consular jurisdiction, he seized the person of Koszta within the pale of his jurisdiction.
“Such being the case, the Imperial Government trusts that the Gorernment of the United States will hasten to instruct its consul at Smyrna not to interpose any obstacle to the extradition of the aforesaid Koszta by the consul-general of France to the consul-general of Austria at Smyrna.
“ But, apart from this question of jurisdiction, it is especially the mode adopted by the functionaries of the United States, in order to settle the matter, which has given the Imperial Government the most legitimate grounds of complaint.
“ The act of violence which the commander of the sloop-of-war · St. Louis' committed against the Austrian brig ‘Huszar '—that real act of war, committed in full peace, in a neutral port, the fatal effects of which were only averted by the prudence and moderation of our consul-general at Smyrna—constitutes an outrage upon the principles of the law of nations; and the Imperial Government has no doubt but that this act, viewed in such light, will have been condemned by the Government of the United States, said Government being itself interested in preventing the repetition of similar occurrences.
“ The events of the second of July at Smyrna present in a twofold point of view a serious deviation from the rules of international law.
“ 1st. The commander of the United States sloop-of-war 'St. Louis' threatened the brig of Ilis Imperial and Royal Apostolic Majesty, the ‘Huszar,' with a hostile attack, by bringing his guns to bear upon the latter, and by announcing, in writing, that if a certain individual detained on board, whose nationality was being discussed between the agents of the two Governments, was not delivered over to him at a stated hour, he would go and take him by main force.
“ There can be no doubt but that the threat of attacking, by main force, a vessel of war belonging to the military marine of a sovereign state whose flag she carries, is nothing else than a threat of an act of
Now, the right of making war is necessarily, and from the very nature of that right, inherent in the sovereign power.
“ 'A right of so momentous a nature,' says Vattel (Law of Nations, vol. 2, book 3, chap. 1, § 1) 'the right of judging whether the nation has real grounds of complaint; whether she is authorized to employ force, and justifiable in tuking up arms; whether prudence will admit of such a step, and whether the welfare of the state requires it—that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights without which there can be no salutary government, and which are therefore called rights of majesty.'
The founders of the Republic of the United States fully recognized, from the beginning of the Union, the rights reserved to the sovereign power. The articles of perpetual confederacy and union between the States of New Hampshire, Massachusetts, &c., of 1778, contain already the following stipulation (IX. $ 1):
“ * The right of declaring war and to make peace shall belong solely and exclusively to the Congress of the United States.'
“ This basis of the public law of the United States was preserved and sanctioned by the Constitution of the United States of 1787, which reserves the power of declaring war explicitly to Congress (Section VIII.).
“Upon this point the Constitution of the United States harmonizes perfectly with the public law of Europe.
“But this right, reserved to the supreme power of each country, would become illusory and null, if commanders of naval forces or others were to be explicitly or tacitly authorized to undertake, either of their own accord or upon the order or with the consent of a diplomatic or consular agent, to commit acts of aggression and of war against the vessels or the troops of another nation, without special instructions from the supreme authority of their own country, notified in the forms prescribed by the law of nations.
“2dly. This act of hostility has been committed in a neutral port of a power friendly to both nations.
Certainly, if there be one point of maritime and international law which is clearly and positively defined, and which has been adopted by all the powers of the world, it is the inviolability of neutral ports, the absolute prohibition from committing, in such ports, acts of war and of violence, even against the enemy with whom we are at open war.
The history of maritime wars at the period of the French Revolution furnishes abundant proofs of the very particular jealousy with which the Government of the United States maintained the rights of neutrals; and the undersigned would cite some celebrated cases, in which the first statesmen of the Union, the most distinguished predecessors of Mr. Marcy in the high position which he fills, have defended, the absolute inviolability of neutral ports, by means of most elaborate
arguments. But as the undersigned is fully persuaded that the same doctrines will serve as guides to the Government of the United States on the present occasion, he confines himself to this slight allusion to those principles which were formerly maintained, and very recently supported by the Government of the United States in relation to the rights of neutrals, and more especially in regard to the inviolability of neutral ports.
“ The Imperial Government entertains too high an opinion of the sense of justice and of integrity of the Government of the United States to doubt for a single instant its anxiety to disavow the conduct of its agents, under the circumstances above mentioned, and that it will hasten to call them to a severe account, and tender to Austria a satisfaction proportionate to the magnitude of the outrage.”
Mr. Hülsemann, Austrian chargé d'affaires, to Mr. Marcy, Sec. of State,
Aug. 29, 1853, II. Ex. Doc. 1, 33 Cong. 1 sess. 25.
To bring out conspicuously the questions to be passed upon, it
seems to the undersigned that the facts should be Mr. Marcy's Note,
more fully and clearly stated than they are in Mr. Sept. 26, 1853.
Hülsemann's note. “ Martin Koszta, by birth a Hungarian, and of course an Austrian subject at that time, took an open and active part in the political movement of 1848-49, designed to detach Hungary from the dominion of the Emperor of Austria. At the close of that disastrous revolutionary movement, Koszta, with many others engaged in the same cause, fled from the Austrian dominions, and took refuge in Turkey. The extradition of these fugitives, Koszta among them, was demanded and pressed with great vigor by Austria, but firmly resisted by the Turkish Government. They were, however, confined at Kutahia, but at length released, with the understanding or by express agreement of Austria that they should leave Turkey and go into foreign parts. Most of them, it is believed, before they obtained their release, indicated the United States as the country of their exile. It is alleged that Koszta left Turkey in company with Kossuth-this is believed to be a mistake; and that he engaged never to return—this is regarded as doubtful. To this sentence of banishment—for such is the true character of their expulsion from Turkey-Austria gave her consent; in truth, it was the result of her efforts to procure their extradition, and was accepted by her as a substitute for it. She had agents or commissioners at Kutahia to attend to their embarkation, and to her the legal consequences of this act are the same as if it had been done directly by herself, and not by the agency of the Ottoman Porte. Koszta came to the United States and selected this country for his future home.
“On the 31st of July, 1852, he made a declaration, under oath, before a proper tribunal, of his intention to become a citizen of the United States and renounce all allegiance to any other state or sovereign.
"After remaining here one year and eleven months, he returned, on account, as is alleged, of private business of a temporary character, to Turkey in an American vessel, claimed the rights of a naturalized American citizen, and offered to place himself under the protection of the United States consul at Smyrna. The consul at first hesitated to recognize and receive him as such; but afterwards, and sometime before his seizure, he, and the American chargé d'affaires ad interim at Constantinople, did extend protection to him, and furnished him with a tezkereh—a kind of passport or letter of safe-conduct, usually given by foreign consuls in Turkey to persons to whom they extend protection, as by Turkish laws they have a right to do. It is important to observe that there is no exception taken to his conduct after his return to Turkey, and that Austria has not alleged that he was there for any political object, or for any other purpose than the transaction of private business. While waiting, as is alleged, for an opportunity to return to the United States, he was seized by a band of lawless meji-freely, perhaps harshly, characterized in the despatches as 'ruffians,' • Greek hirelings,' ' robbers '—who had not, nor did they pretend to have, any color of authority emanating from Turkey or Austria, treated with violence and cruelty, and thrown into the sea. Immediately thereafter he was taken up by a boat's crew lying in wait for him, belonging to the Austrian brig-of-war the ‘Huszar,' forced on board of that vessel, and there confined in irons. It is now avowed, as it was then suspected, that these desperadoes were instigated to this outrage by the Austrian consul-general at Smyrna; but it is not pretended that he acted under the civil authority of Turkey, but, on the contrary, it is admitted that, on application to the Turkish governor at Smyrna, that magistrate refused to grant the Austrian consul any authority to arrest Koszta.
“ The consul of the United States at Smyrna, as soon as he heard of the seizure of Koszta, and the chargé d'affaires of the United States ad interim at Constantinople, afterwards interceded with the Turkish authorities, with the Austrian consul-general at Smyrna, and the commander of the Austrian brig-of-war, for his release, on the ground of his American nationality. To support this claim, Koszta's original certificate of having made, under oath, in a court in New York, a declaration of intention to become an American citizen, was produced at Smyrna, and an imperfect copy of it placed in the hands of the Imperial Austrian Internuncio at Constantinople. The application to these officers at Smyrna for his liberation, as