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sonal character,” or such as might be “demanded by humanity or the pressing urgency of the case; " but that, in rendering such services, the minister “must exercise very great prudence, lest be give offence to the government near which he resides, or compromise his own immunities by seeming to interfere with the administration of " its “internal affairs."
Your letter of the 9th instant has been received. So far as I understand your case, it is not at all like that of M. Koszta . Koszta, it will be recollected, did not return to Austria or any of its dominions, but its officers attempted to seize him in a foreign country without any right to do so. Had K. been within the jurisdiction of Austria when he was seized, the whole character of the case would have been changed, and the forcible taking of him from the legal custody of Austrian officers could not have been defended on any principle of municipal or international law.”
Mr. Marey, Sec. of State, to Harry, Baron de Kalb, July 20, 1855, 44 MS.
Dom. Let. 212. See this letter, more fully, infra, $ 537.
“With reference to the case of Mr. Robert G. Derbyshire, I have to inform
that his mere declaration of an intention to become a citizen of the United States, if he is resident abroad and has no domicil in the United States, imposes no obligation upon you to apply to the Nicaraguan Government for redress in his behalf on account of the seizure of his property in the City of Granada.
“Supposing Mr. John Fearon to be a citizen or domiciled resident, there would be no impropriety in your addressing a note to the proper officer at the capital of Honduras, setting forth the grievances of which- Mr. Fearon complains in his letter to you of the 21st of June, requesting an inquiry into the case and such punishment of the officers complained of as the result of the inquiry may call for.”
Mr. Marcy, Sec. of State, to Mr. Wheeler, min. to ('ent. Am., No. 12, Oct.
15, 1855, MS. Inst. Am. States, XV. 245. See infra, pp. 892–894.
“ The impression of Mr. Goundie [U. S. consul at Zurich], as stated by you, that I entertained the opinion that a declaration on the part of an alien of his intention to become a citizen of the United States entitles the declarant, while abroad, with the intention to return, to the same rights and privileges as a citizen of the United States,' is the result of some misapprehension originating I know not how. I have never expressed and am very far from holding any such opinion. That a person under the circumstances stated by Mr. Goundie would be entitled to more consideration from an American minister or consul abroad than one who has entered into no such relation with this country there can be no doubt, but not being a citizen under our laws, even while domiciled here, he can not enjoy all the rights of one either here or abroad. This is the opinion expressed by Mr. Marcy, and I do not see how a different one can be reasonably entertained.”
Mr. Cass, Sec. of State, to Mr. Fay, min. to Switzerland, Nov. 12, 1860,
MS. Inst. Switz. I. 85.
In February, 1862, two American citizens, Henry Myers and J. F. Tunstall, members of the crew of the Confederate steamer Sumter, then lying at Gibraltar, took passage on the French merchant steamer Ville de Malaga, for the purpose of proceeding to Cadiz, in order to obtain a supply of coal for the Confederate cruiser. The Ville de Malaga having called at Tangier, Morocco, Myers and Tunstall went ashore, and while walking in the street were, with the aid of a military guard furnished by the Moorish Government, arrested by the United States consul and conveyed to the consulate, where they were kept in irons till the arrival of the U. S. S. Ino, on which, with the aid of a similar guard, they were shipped for the United States. They were subsequently committed into military custody at Fort Warren, Boston. The action of the United States in this case having been criticised on the ground that it conflicted with the position taken by the same government in the Koszta case, Mr. Seward said: “It has been assumed that in that instance the United States not only demanded impunity everywhere for all persons who were engaged, under any circumstances, in armed hostility to their own government, but even assumed a cosmopolitan championship for them. But this is very erroneous.
Koszta had indeed been a revolutionist in Austria, and he was delivered by the United States authorities from the hands of Austrian agents in Smyrna, a province of Turkey, which is a Mahometan power whose relations to Christian states are the same as those of Morocco.
“ But the facts were that the civil war in Austria was at an end. Martin Koszta was a Hungarian by birth, and was a refugee; he had fled, and had been decreed an outlaw by Austria. He had taken asylum in America and had, under our laws, become domiciled and nationalized as an American, and as such was held entitled to the protection of this government under its treaty with the Sultan of Turkey. Ile held a guarantee of protection from our consul at Smyrna, a protection which was in conformity with the treaty and with our own laws. The agents of the Austrian Government seized him and undertook to carry him away by force, against the remonstrances of our consul, and in defiance of the authorities of Turkey, and to subject him to arbitrary punishment as a subject of a state from which he had been transferred to the United States. It is not easy to understand how the proceedings of this government in that case can be deemed to commit it to tolerate revolution against itself by our own disloyal citizens.”
Mr. Seward, Sec. of State, to Mr. McMath, consul at Tangier, April 28,
1862, Dip. Cor. 1862, 873, 877.
“The late distinguished Secretary of State, Mr. Marcy, was very careful in his elaborate letter concerning the case of Martin Koszta not to commit this government to the obligation or to the propriety of using the force of the nation for the protection of foreign-born persons who, after declaring their intention to become at some future time citizens of the United States, leave its shores to return to their native country. He showed clearly that Koszta had been expatriated by Austria, and required to reside outside her jurisdiction; that at the time of his seizure he was not on Austrian soil, or where Austria could claim him by treaty stipulations; that the seizure was an act of lawless violence, which every law-abiding man was entitled to resist; and he took especial care to insist that the case was to be judged, not by the municipal laws of the United States, not by the local laws of Turkey, not by the conventions between Turkey and Austria, but by the great principles of international law. It is true that in the concluding part of that masterly dispatch he did say that a nation might at its pleasure clothe with the rights of its nationality persons not citizens, who were permanently domiciled in its borders. But it will be observed by the careful reader of that letter that this portion is supplemental merely to the main line of the great argument, and that the Secretary rests the right of the government to clothe the individual with the attributes of nationality, not upon the declaration of intention to become a citizen, but upon the permanent domicil of the foreigner within the country.
“ To extend this principle beyond the careful limitation put upon it by Secretary Marcy would be dangerous to the peace of the country. It has been repeatedly decided by this Department that the declaration of intention to become a citizen does not, in the absence of treaty stipulations, so clothe the individual with the nationality of this country as to enable him to return to his native land without being necessarily subject to all the laws thereof."
Mr. J. C. B. Davis, Assist. Sec. of State, to Mr. Fox, consul at Trinidad
de Cuba, May 12, 1809, S. Ex. Doc. 108, 41 Cong. 2 sess, 202–203.
The full substance of the correspondence between Mr. Marcy and the Chevalier Hülsemann concerning the Koszta case has been given, and to this have been added other discussions of and comments upon the case by Mr. Marcy himself and his immediate successors, in order that the misconceptions that have so widely prevailed on the subject may be removed. First of all, it is seen that the supposition that Mr. Marcy held that Koszta's declaration of intention gave him an American character and a claim to the protection of the United States is not only destitute of foundation, but is directly opposed to his repeatedly expressed opinion. He referred to the declaration of intention merely as an evidence of domicil. In the second place, there likewise disappears the supposition that he held that a domiciled alien, even where he had made a declaration of intention, was entitled to the same protection abroad as a citizen of the United States, or yet to protection against the claims of the country of his original allegiance· lawfully asserted, either there or in a third country. In the third place, it appears by Mr. Marcy's instruction to Mr. Marsh, of Aug. 26, 1853, that the claim that Koszta had at the time of his seizure an American character was based, in the first instance, exclusively upon his having been duly admitted to American protection, according to the recognized usage in Turkey.
The links in Mr. Marey's chain of reasoning were (1) that, as the seizure and rescue of Koszta took place within the jurisdiction of a third power, the respective rights of the United States and of Austria, as parties to the controversy that had arisen concerning that transaction, could not be determined by the municipal law of either country, but must be determined by international law; (2) that, as the previous political connection between Koszta and the Austrian Goyernment had, by reason of the circumstances of his emigration and banishment, been, even under the laws of Austria, dissolved, he could not at the time of his seizure be claimed as an Austrian subject, nor could his seizure as such be justified by Austria, either under international law or her treaties with Turkey; (3) that the seizure in its method and circumstances constituted an outrage so palpable that any bystander would have been justified, on elementary principles of justice and humanity, in interposing to prevent its consummation; (4) that there were, however, special grounds on which the United States might, under international law-that being under the circumstances the only criterion—assert a right to protect Koszta; (5) that, although he had ceased to be a subject of Austria and had not become a citizen of the United States, and therefore could not claim the rights of a citizen under the municipal laws of either country, he might under international law derive a national character from domicil; (6) that, even if Koszta was not, by reason of his domicil, invested with the nationality of the United States, he undoubtedly possessed, under the usage prevailing in Turkey, which was recognized and sanctioned by international law, the nationality of the United States, from the moment when he was placed under the protection of the American diplomatic and consular agents, and received from them his tezkereh; (7) that, as he was clothed with the nationality of the United States, and as the first aggressive act was com
mitted by procurement of the Austrian functionaries, Austria, if she upheld wlaat was done, became in fact the first aggressor, and was not entitled to an apology for the measures adopted by Captain Ingraham to secure his release; (8) that Captain Ingraham's action was further justified by the information which he received of a plot to remove Koszta clandestinely, in violation of the amicable arrangement under which he was to be retained at Smyrna while the question of his nationality was pending; (9) and finally, that, as the seizure of Koszta was illegal and unjustifiable, the President could not consent to his delivery to the consul-general of Austria at Smyrna, but expected that measures would be taken to cause him to be restored to the condition he was in before he was seized.
By an agreement signed July 2, 1853, by the American consul and the Austrian consul-general at Smyrna, Koszta had been placed in the custody of the French consul-general, who was not to deliver him up except upon a requisition of both those officials. Such a requisition, addressed to the French consul-general, was signed by them October 14, 1853, under instructions received from the American and Austrian ministers at Constantinople; and on the same day Koszta took passage on the bark Sultana for Boston. The Austrian minister at Constantinople had sought in the correspondence to reserve the right of Austria to proceed against Koszta in case he should again be found in the Turkish dominions; but the American consul at Smyrna refused to sign a requisition containing such a reservation, and the requisition on which Koszta was, with Austria's concurrence, actually released, was unconditional.a
From the understanding that had been officially established by Mr. Marcy and his successors, as to the exceptional nature and peremptory limitations of the Koszta case, a departure was years afterwards abruptly made, when, as is elsewhere shown, it was intimated (1) that, according to Mr. Marcy, a declaration of intention entitles the declarant to the protection of the United States in countries other than that of his origin, and (2) that where an individual, after making his declaration of intention, leaves the United States, the Government may require that he be permitted to return and be naturalized. Had occasion arisen to make either of these intimations effective, the necessity of defending them exclusively on their merits, without the aid of precedent, doubtless would have become apparent, to say nothing of the fact that, from the second conception, a certain practical and awkward inconsequence would have resulted if the individual, after his duress was removed, had decided not to come to the United States, or if, even after returning to the United States, he had declined to be naturalized.
0 44 Brit. & For. State Pap. 1036.
Supra, pp. 339–340.