"The general rule of the public law is, that every person of full age has a right to change his domicil; and it follows, that when he removes to another place, with an intention to make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicil; and this is so, notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period. The Supreme Court of the United States has decided that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes by these acts such evidences of an intention permanently to reside in that country, as to stamp him with its national character;' and this undoubtedly is in full accordance with the sentiments of the most eminent writers, as well as with those of other high judicial tribunals on the subject. No government has carried this general presumption farther than that of the United States, since it is well known that hundreds of thousands of persons are now living in this country who have not been naturalized according to the provisions of law, nor sworn any allegiance to this Government, nor been domiciled amongst us by any regular course of proceedings. What degree of alarm would it not give to this vastly numerous class of men, actually living amongst us as inhabitants of the United States, to learn that, by removing to this country, they have not transferred their allegiance from the governments of which they were originally subjects to this government? And, on the other hand, what would be the condition of this country and its government, if the sovereigns of Europe, from whose dominions they have emigrated, were supposed to have still a right to interpose to protect such inhabitants against the penalties which might be justly incurred by them in consequence of their violation of the laws of the United States? In questions on this subject, the chief point to be considered is the animus manendi, or intention of continued residence; and this must be decided by reasonable rules and the general principles of evidence. If it sufficiently appear that the intention of removing was to make a permanent settlement, or a settlement for an indefinite time, the right of domicil is acquired by a residence even of a few days.” Again, in the same paper, Mr. Webster said: "No man can carry the ægis of his national American liberty into a foreign country, and expect to hold it up for his exemption from the dominion and authority of the laws and the sovereign power of that country, unless he be authorized to do so by virtue of treaty stipulations." These passages certainly involve no new doctrine. They merely lay down the familiar and fundamental rule of the supremacy of the territorial jurisdiction, with an accentuated affirmation of its peculiar applicability to permanent dwellers. As to the other question, Mr. Webster, on fuller information, decided that the taking out of letters of domiciliation did not involve expatriation nor deprive Mr. Thrasher of the right to claim the privileges secured to citizens of the United States by the treaty of 1795. See, supra, § 468; Webster's Works, VI. 521, 523, 528; S. Ex. Doc. 5, 32 In 1866 the Colombian Congress undertook by statute to define the rights and duties of aliens. By the second section, it was declared that aliens domiciled, and not merely transient, in the country should "enjoy the same civil rights and guarantees and be subject to the same obligations as to person and property as Colombians." To the general principle thus laid down, Mr. Seward perceived no objection, in view of the right of jurisdiction possessed by states over all persons within their territory, except where such jurisdiction is relinquished, as in the case of Mohammedan countries. The act also provided, however, that domiciled aliens should enjoy the exemptions to which they might be entitled by public treaties; and in this relation Mr. Seward called attention to Art. XIII. of the treaty of 1846, which, although it did not provide for any exemptions from the local law, stipulated that the contracting parties should each extend to the citizens of the other within its territories "special protection," whether they were "transient or dwelling therein." Mr. Seward intimated that this stipulation precluded the Colombian Government from drawing “a distinction between our citizens who are commorant and those who are only transiently in that country." Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, No. 155, Sept. 27, 1866, MS. Inst. Colombia, XVI. 200. Where a British subject, for whose killing by a local officer in New Mexico a diplomatic claim for damages had been made, appeared to have been domiciled in that Territory, it was suggested that as he was not, so far as concerned “the administration of the judicial function there, a foreigner," and as his personal estate, if he died intestate, would be distributed in accordance with local law, his “ representatives" had "no title to the intervention of a foreign sovereign." Mr. Bayard, Sec. of State, to Mr. West, Brit. min., June 1, 1885, For. This case is cited in Mr. Porter, Act. Sec. of State, to Mr. Burt, July 11. IV. THE KOSZTA CASE. 1. MARCY-HÜLSEMANN CORRESPONDENCE. $490. "The undersigned, chargé d'affaires of his Majesty the Emperor of Austria, has been instructed to address this official Mr. Hülsemann's note to the honorable Secretary of State, in relation note, Aug. 29, 1853. to the difficulties which have occurred between the agents of the two Governments at the port of Smyrna. "The facts which came to pass on that occasion are of public notoriety, and the undersigned thinks he may confine himself in his comments thereon to the most prominent points. Our consul-general, Mr. de Weckbecker, exercising the right of jurisdiction which has been guaranteed by treaties to the consular agents of Austria in the East relative to their countrymen, had caused to be arrested, and conveyed on board the Austrian brig-of-war Huszar,' the Hungarian refugee, Martin Koszta; who, residing at one time in the interior at Kutahia, had left Turkey, in company with Kossuth, and who, after having pledged himself in writing not to set foot again on Ottoman territory, broke that pledge by returning some months since to Smyrna. This arrest gave cause to some reclamations which Mr. Offley, United States consul, conjointly with the commander of the American sloop-of-war 'St. Louis,' anchored in the roads before Smyrna, deemed it incumbent upon themselves to address to Mr. de Weckbecker, basing their demands upon the fact that the aforesaid Koszta, having, according to them, caused himself to be naturalized in the United States, was entitled to the protection of the American authorities. Upon this, the consul-general of the Emperor, accompanied by the American consul and the American commander, repaired on board the Huszar, and these two functionaries had it in their power to convince themselves, from the declarations of the prisoner himself, that the latter had not acquired the quality of citizen of the United States, and that he was not even provided with an American passport. "On his own part, the chargé d'affaires ad interim of the United States at Constantinople addressed a communication, on the 27th of June, to the Imperial Internuncio (minister), the object of which was 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. 66 "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 Kosztá'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 Government 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 His 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 war. Now, the right of making war is necessarily, and from the very nature of that right, inherent in the sovereign power. |