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 Marey 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, 1869, 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. Marcy'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 Government 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 what 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." 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. a 44 Brit. & For. State Pap. 1036. Supra, pp. 339–340. In 1885 a new position, more nearly associable in theory with the Koszta case, was taken by the Department of State, when the printed personal instructions to the diplomatic agents of the United States were amended so as to provide (section 118) that "nothing herein contained is to be construed as in any way abridging the right of persons domiciled in the United States, but not naturalized therein, to maintain internationally their status of domicil, and to claim protection from this Government, in the maintenance of such status." The origin of this amendment, in a report of Dr. Wharton, as solicitor of the Department of State, is elsewhere shown; and the amendment is cited, in Wharton's International Law Digest, with the comment that "when the party making the declaration [of intention] has acquired a domicil in this country" the Government of the United States "will protect him in all the rights which the law of nations attaches to domicil." In the President's message of Dec. 8, 1885, however, it was stated that "the rights which spring from domicil in the United States, especially when coupled with a declaration of intention to become a citizen," were "worthy of definition by statute;" that such a person gained" an inchoate status which legislation may properly define;" that, under the laws of certain States and Territories, he enjoyed the local franchise" and possessed "rights of citizenship to a degree which places him in the anomalous position of being a citizen of a State and yet not of the United States within the purview of Federal and international law;" and that it was important, "within the scope of national legislation, to define this right" of "alien domicil" as distinguished from "Federal naturalization." 66 By this recommendation, the President, whose views on the subject no doubt were shared by the Secretary of State, does not appear to have thought it desirable that the United States should forsake, as the basis of its diplomatic action, the usual and definite test of citizenship, embodied in existing law, for the subjective and circumstantial test of domicil. But qualified as the recommendation was, Congress took no action upon it; and the view embodied in the amendment of the personal instructions, although it was occasionally reitcrated in terms similarly indefinite in other documents, seems gradually to have fallen into desuetude. It directly appears, indeed, that Mr. Bayard became convinced that the proposed innovation, to which he had given a formal sanction, did not afford a satisfactory rule of action. In the case of Baron Seillière, given below, he says: "The question of domicil is a matter of inference from circumstances which are often shifting, uncertain, and complex. a Supra, p. 522. Wharton Int. Law Dig. II. 359. The rights of domicil and of nationality are not identical, and are often entirely distinct and independent." When the instructions to diplomatic agents were revised in 1897, during the Secretaryship of Mr. Olney, the reference to domicil was omitted. "The criterion by which Koszta's and Burnato's cases are to be measured in examining questions arising with respect to aliens who have declared, but not lawfully perfected, their intention to become citizens of the United States, is very simple. "When the party, after such declaration, evidences his intent to perfect the process of naturalization by continued residence in the United States as required by law, this Government holds that it has a right to remonstrate against any act of the Government of original allegiance whereby the perfection of his American citizenship may be prevented by force, and original jurisdiction over the individual reasserted. Koszta and Burnato were both resident in the United States, and their absence was that of temporary character, animo revertendi, which does not conflict with the continuity of residence. required by the statute. Koszta was arrested by the authorities of Austria in the dominions of a third state. Burnato, who had definitely abandoned Mexican domicil, was held for military service in Mexico on the occasion of a transient return. "Mr. Walsh, however, as my predecessors have remarked, had given no proof of retention of American residence. On the contrary, immediately after his declaration of intention, he established a commercial domicil in Mexico under circumstances which would have sufficed to disrupt his continued residence in the United States and prevent his naturalization under the statute. "By so removing to Mexico, he must be deemed to have abandoned his declared intention to become an American citizen." Mr. Bayard, Sec. of State, to Mr. Mackey, Aug. 5, 1885, Wharton's Int. See, also, Mr. Bayard, Sec. of State, to Mr. Beard, April 8, 1885, 155 MS. The view above expressed reflects the gloss first put upon the Koszta case in 1884. (Supra, pp. 339-340.) The intimation, however, that a declarant acquired special rights as against the country of his "original allegiance" seems to be directly in conflict with the theory advanced in 1884 that he was entitled to protection only in third states, as well as with the position taken by Mr. Marcy, not only in Koszta's case, but also in Tousig's case and on other occasions; nor is it borne out by an examination of the position actually taken by the United States in the case of Burnato. The facts in Burnato's case are as follows: |