but only in an incidental manner, and that by the implied consent of the sovereign, for the benefit of his subjects, without pre

of nations they have the same nationality; and what right has any foreign power, for the purpose of making distinction between them, to look behind the character given them by that code which regulates national intercourse? When the law of nations determines the nationality of any man, foreign governments are bound to respect its decision.

"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.

"Giving effect to these well-established principles, and applying them to the facts in the case, the result is, that Koszta acquired, while in the United States, their national character; that he retained that character when he was seized at Smyrna, and that he had a right to be respected as such while there, by Austria and every other foreign power. The right of a nation to protect, and require others to respect, at home and abroad, all who are clothed with its nationality, is no new doctrine, now for the first time brought into operation by the United States. It is common to all nations, and has had the sanction of their practice for ages.

"The liberal policy of the United States in regard to receiving immigrants from all nations, and extending to them the advantages of their free institutions, makes it an act of justice 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 any restrictions upon it."

So far the claim of Koszta to American protection is placed on considerations which would equally apply in any country; but, apart from his right to our interposition, as founded on naturalization or domicile, the peculiar usages of Turkey and other eastern nations would, under the circumstances, the Secretary further shows, have justified the proceedings of the American commander.

"There is another view of this case which places the conduct of the agents of this government at Smyrna upon equally defensible grounds. The American Consul there, and the American Legation at Constantinople, acted with great caution in relation to Koszta's claim to be regarded as entitled to the protection of this government. As his naturalization had not been perfected, they hesitated at first to receive him under their protection; but the facts show that they ultimately yielded to his application. He received from each a tezkereh—in effect a certificate that the person to whom it is given is cared for, and received under the protection of the government whose agent has granted it.

"By the laws of Turkey and other eastern nations, the consulates therein may receive under their protection strangers and sojourners whose religion and social

judicing his or their rights. But the practice of nations is certainly different, and therefore no such consent can be implied to

manners do not assimilate with the religion and manners of those countries. The persons thus received become thereby invested with the nationality of the protecting consulate. These consulates, and other European establishments in the East, are in the constant habit of opening their doors for the reception of such inmates, who are received irrespective of the country of their birth or allegiance. It is not uncommon for them to have a large number of such protegés. International law recognizes and sanctions the rights acquired by this connection.

"The Lords of Appeals in the High Court of Admiralty in England decided in 1784, that a merchant carrying on trade at Smyrna, under the protection of a Dutch Consul, was to be considered a Dutchman as to his national character. Wheaton's Inter. Law, 3d ed. p. 384, 3 Rob. Adm. Reports, p. 12.

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

"According to the principle established in this case, Koszta was invested with the nationality of the United States, if he had it not before, the moment he was under the protection of the American Consul at Smyrna and the American Legation at Constantinople. That he was so received is established by the tezkereh they gave him, and the efforts they made for his release.

"Having been received under the protection of these American establishments, he had thereby acquired, according to the law of nations, their nationality; and when wronged and outraged as he was, they might interpose for his liberation, and Captain Ingraham had a right to cooperate with them for the accomplishment of that object. . .

"If the conclusions heretofore arrived at are correct, the Austrian agents had no more right to take Koszta from the soil of the Turkish dominions than from the territory of the United States, and Captain Ingraham had the same right to demand and enforce his release as he would have had if Koszta had been taken from American soil, and incarcerated in a national vessel of the Austrian Emperor. In this question, confined as it is to the United States and Austria, the place of the transaction is immaterial, unless the Austrian municipal laws extended over it...

"The conclusions at which the President has arrived, after a full examination of the transaction at Smyrna, and a respectful consideration of the views of the Austrian government thereon, as presented in Mr. Hülsemann's note, are, that Koszta, when seized and imprisoned, was invested with the nationality of the United States, and they had, therefore, the right, if they chose to exercise it, to extend their protection to him; that from international law the only law which can be rightfully appealed to for rules of action in this case - Austria could derive no authority to obstruct or interfere with the United States in the exercise of this right, in effecting the liberation of Koszta; and that Captain Ingraham's interposition for his release was, under the peculiar and extraordinary circumstances of the case, right and proper.

"The President does not see sufficient cause for disavowing the acts of the

waive the local law which has impressed certain indelible qualities upon immovable property within the territorial jurisdiction.1

American agents which are complained of by Austria. Her claim for satisfaction on that account has been carefully considered, and is respectfully declined.

"Being convinced that the seizure and imprisonment of Koszta were illegal and unjustifiable, the President also declines to give his consent to his delivery to the Consul-General of Austria at Smyrna; but, after a full examination of the case, as herein presented, he has instructed (the Secretary of State) to communicate to Mr. Hülsemann his confident expectation that the Emperor of Austria will take the proper measures to cause Martin Koszta to be restored to the same condition he was in before he was seized in the streets of Smyrna on the 21st of June last." Cong. Doc. 33 Cong. 1 Sess. Senate, Ex. Doc. No. 1.

The further discussion of this question was rendered unnecessary by an arrangement, concluded between the American and Austrian legations, at Constantinople. It was agreed that Koszta should embark under the surveillance of their respective consular authorities at Smyrna, on board of an American ship-ofwar, if there was one there, otherwise on board of a merchant vessel, which should proceed immediately to the United States without stopping at any intermediate port, except in case of necessity, and that Koszta should be provided with an American passport, which should prohibit his changing his route before landing in this country. The Austrian government reserved the right of proceeding against him should he be again found in Ottoman territory. Cong. Doc. 33 Cong. 1 Sess. . R. Ex. Doc. No. 91.

The protection which this country affords to naturalized citizens, or those who are clothed with its nationality, does not extend to defend them against the authorities of their own country, in case of their voluntary return to it. Mr. Marcy writes to Mr. Jackson, Chargé d'Affaires at Vienna, on 10th of January, 1854: "I have carefully examined your despatches relating to the case of Simon Tousig, and regret to find that it is one which will not authorize a more effective interference than that which you have already made in his behalf. It is true he left this country with a passport issued from this department; but as he was neither a native-born nor naturalized citizen, he was not entitled to it. It is only to citizens that passports are issued."

"Assuming all that could possibly belong to Tousig's case that he had a domicile here and was actually clothed with the nationality of the United Statesthere is a feature in it which distinguishes it from that of Koszta. Tousig voluntarily returned to Austria, and placed himself within the reach of her municipal laws. He went by his free act under their jurisdiction, and thereby subjected himself to them. If he had incurred penalties or assumed duties while under these laws, he might have expected they would be enforced against him, and should have known that the new political relation he had acquired, if indeed he had acquired any, could not operate as a release from these penalties. Having

1 Kent's Commentaries on American Law, vol. ii. pp. 182, 186, Note, 5th

As to personal property (mobilia) the lex loci contraclús or lex domicilii may, in certain cases, prevail over that of the place

been once subject to the municipal laws of Austria, and while under her jurisdiction violated these laws, his withdrawal from that jurisdiction and acquiring a different national character would not exempt him from their operation whenever he again chose to place himself under them. Every nation, whenever its laws are violated by any one owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the penalties incurred upon the transgressor, if found within its jurisdiction. The case is not altered by the character of the laws, unless they are in derogation of the well-established international code. No nation has a right to supervise the municipal code of another nation, or claim that its citizens or subjects shall be exempted from the operation of such code, if they have voluntarily placed themselves under it. The character of the municipal laws of one country does not furnish a just ground for other States to interfere with the execution of these laws, even upon their own citizens, when they have gone into that country and, subjected themselves to its jurisdiction. If this country can rightfully claim no such exemption for its native-born or naturalized citizens, surely it cannot claim it for those who have at most but inchoate rights of citizens.

"The above principle, that persons, being citizens or subjects of one State, and having violated the laws of another State, may be punished while they remain under, or are fairly brought within, the jurisdiction of the latter State, is too well established to be made a matter of serious controversy. It is clearly affirmed in, and indeed is the basis of, every extradition treaty. Each contracting party agrees to deliver up to the other, fugitive offenders generally including its own citizens as well as strangers-for specified offences, to be dealt with according to the laws of the country demanding the surrender of them. It is true that there are some kinds of offences which are not, and ought not to be, included in extradition treaties: such, for instance, as are called political offences; yet, because one nation will not enter into a compact to deliver such offenders to another, that does not justify the inference that if such offenders go voluntarily within the jurisdiction of the country whose laws they have offended, they may not be rightfully punished, or that they can claim exemption from punishment if they were citizens of another country when the offence was committed, or had, after committing it, acquired another nationality.

"The country whose protection is invoked cannot, it is conceived, properly interpose in such a case, unless the municipal law, the violation of which is charged, contravenes some right of such country acquired by treaty stipulations, or otherwise.

"The principle does not at all interfere with the right of any State to protect its citizens, or those entitled to its protection, when abroad, from wrongs and injuries — from arbitrary acts of oppression or deprivation of property, as contradistinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves. I do not discover any principle in virtue of which this government can claim, as

where the property is situated. Huberus holds that not only the marriage contract itself, duly celebrated in a given place, is valid in all other places, but that the rights and effects of the contract, as depending upon the lex loci, are to be equally in force everywhere. If this rule be confined to personal property, it may be considered as confirmed by the unanimous authority of the public jurists, who unite in maintaining the doctrine that the incidents and effects of the marriage upon the property of the parties, wherever situated, are to be governed by the law of the matrimonial domicile, in the absence of any other positive nuptial contract.2 But if there be an express ante-nuptial contract, the rights of the parties under it are to be governed by the lex loci contractus.3

bankrupt

discharge

Effect of By the general international law of Europe and America, a certificate of discharge obtained by a bankand title of rupt in the country of which he is a subject, and where the contract was made and the parties domiciled, is valid to discharge the debtor in every other country;

assignees in another country.

a matter of right, the release of Tousig. He has voluntarily placed himself within the jurisdiction of the laws of Austria, and is suffering, as appears by the case as you present it, for the acts he had done in violation of those laws while he was an Austrian subject." Cong. Doc. 33 Cong. 1 Sess. H. R. Ex. Doc. No. 41.

A case presenting the question how far a naturalized citizen of the United States, on his return to the country of his origin, could claim the interposition of the American legation to protect him against the performance of the duties imposed on him as a native subject, by the sovereign whose allegiance he had renounced, occurred in 1840, during Mr. Wheaton's residence at Berlin. To the application of a naturalized citizen of the United States, who had been required to perform military duty in Prussia, of which he was a native, he replied; "Had you remained in the United States or visited any other foreign country (except Prussia) on your lawful business, you would have been protected by the American authorities at home and abroad, in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But having returned to the country of your birth, your native domicile and national character revert (so long as you remain in the Prussian dominions,) and you are bound in all respects to obey the laws, exactly as if you had never emigrated." Mr. Wheaton to J. P. Knocke, 24th July, 1840. MS. Despatches.

1 "Porro, non tantum ipsi contractus ipsæque nuptiæ, certis locis ritè celebratæ, ubique pro justis et validis habentur; sed etiam jura et effecta contractuum nuptiarumque, in iis locis recepta, ubique vim suam obtinebunt." Huberus, 1. i. tit 3, de Conflict. Leg. § 9.

2 Fœlix, § 66.

3 Johnson's Ch. Rep. vol. iii. p. 211. De Couche v. Savetier.