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The Case of Martin Kostza



[From Brownson's Quarterly Review for January, 1854]


         The main facts in the Koszta case, as far as publicly known, may be briefly stated. Koszta, born an Austrian subject, engaged in the late Hungarian rebellion, revolt, or revolution, and on its suppression by the united arms of Austria and Russia, fled across the frontier into Turkey, where at the instance of Austria he was confined with Kossuth and other refugees in the fortress of Kutahia, whence, after some months of imprisonment, he was liberated on condition of never setting his foot again on Ottoman territory. After his liberation, he came to this country, where he declared his intention to become a citizen, and where he remained one year and eleven months. Some time last spring he returned to Turkey, and was arrested last June at Smyrna, by the authority of the Austrian consul-general, as an Austrian subject, and conveyed and detained on board an Austrian brig-of-war, the Iluszar, then lying in the port. The American authorities at the place protested against his arrest and detention, and demanded his release on the ground that he was an American citizen, or at least under American protection. The Austrian authorities not judging it proper to comply with this demand, Captain Ingraham, commanding the American sloop-of-war, the St. Louis, ranged his ship alongside of the Huszar, brought his guns to bear, and threatened to fire upon her if Koszta was not given up before a certain specified time. The matter, however, was arranged for the moment, by placing Koszta in charge of the French consul, who agreed to detain him in his custody till disposed of by the consent of the Austrian and the American governments. He has since been liberated by consent of both parties, on the understanding of coming immediately to this country on board aw' American vessel.

         Of the hostile attack of Captain Ingraham on the Huszar, Austria complains in a letter, dated the 29th of last August, addressed to our government by her charge d' affaires at Washington, and demands reparation for the alleged outrage upon her flag. To this complaint' and demand Mr. Secretary Marcy replies, on the part of our government, in a letter of the 26th of September last, denying the right of Austria to complain, and refusing her reparation, on the ground that Koszta, at the time of his arrest, was not an Austrian subject, but was an American citizen, or at least under American protection; that he was illegally seized and thrown into the sea by a band of ruffians, and thence picked up and illegally carried and detained on board the Huszar, whence Captain Ingraham was authorized by the laws of nations and of humanity to demand his release, and to use force if necessary to effect it. Such are the principal facts and points in the case, and it is clear that the main question is made by our government to turn on the nationality of Koszta at the time of his arrest.

            That Koszta was born an Austrian subject is not disputed; that he was an Austrian subject down to his release from Kutahia and leaving the Ottoman dominions, must be conceded. He was, therefore, an Austrian subject at the time of his arrest at Smyrna, unless during the interval he had either by some act of his own divested himself, or by some act of Austria been divested, of that character. Mr. Marcy contends that he had been divested of it in both these ways,—that he had renounced his allegiance to Austria, and she had renounced her authority over him, denationalized him, by banishing and outlawing him.

            That he had forfeited the protection of his sovereign may be true, but that he had ceased to be an Austrian subject by any act of his own, Mr. Marcy is not at liberty to assert. We raise here no discussion on the disputed question of the right of a citizen or subject to expatriate himself, and, for the purposes of the present argument, we accept the doctrine laid down by Mr. Marcy himself, namely: "The citizen or subject, having faithfully performed the pant and the present duties resulting from his relation to the sovereign, may at any time release himself from his obligation of allegiance, freely quit the land of his birth or adoption, seek through all countries a home, and select anywhere that which offers him the fairest prospect of happiness for himself and his posterity." This is the government's own doctrine, officially put forth, and it is bound by it. According to this doctrine, only they who have faithfully performed the past and present duties resulting from their relation to the sovereign, are free to expatriate themselves. That is, a man cannot renounce his allegiance in order to escape his sovereign's justice. This is decisive of the case of Koszta, so far as his ceasing to be an Austrian subject by his own act is concerned; for he was a criminal, a rebel, a fugitive from justice, one who had notoriously failed faithfully to perform his past and present duties to his sovereign. He was not, then, free to relieve himself from his obligation of allegiance, and to expatriate himself. He might withdraw himself from Austrian jurisdiction, but not from his subjection to Austrian law. If Koszta, then, did not and could not, being a refugee, a fugitive from justice, cease to be an Austrian subject by his own act. But, according to Mr. Marcy, he ceased to be such subject by the act of Austria, who had, as he says, banished and outlawed him. This she had done, first, by an imperial decree of the 20th of March, 1832, by which he became an "unlawful emigrant," and secondly, by consenting to and procuring his expulsion from Turkey.

By the imperial decree cited, "Austrian subjects leaving the emperor's dominions without permission of the magistrate, and a release of Austrian citizenship, and with an intention never to return, become unlawful emigrants, and lose all their civil and political rights." This the secretary contends is virtual outlawry; but in this we think he is mistaken; for a man deprived of all his civil and political lights may be still under the protection of what the Roman lawyers call the jus gentium. This decree imposes a penalty on Austrian subjects leaving the emperor's dominion) without permission, with the view of preventing them from doing so, and not with a view, if they choose to incur it, of releasing them from their obligation of allegiance. As such release evidently did not enter into the intention of the legislators, it cannot be presumed from the nature of the penalty imposed. To deprive a citizen unjustly of all his civil and political rights is tyrannical, and undoubtedly releases him from the bond of allegiance; but it does not therefore follow that he who forfeits those rights by his unlawful acts is thereby released from his subjection. It is a maxim of law, that no man can stand upon his own wrong, and therefore no man by his own wrong-doing can free himself from any moral or civil obligation; otherwise by crime one might gain the right to commit crime with impunity,—a doctrine subversive of all morals, and of civil society itself. As the decree imposes the loss of civil and political rights as a penalty for an unlawful act, we cannot infer that it releases him who incurs it from his subjection to his prince, unless such be the expressed will of the prince himself; which in the present case evidently is not the fact.

But only they who leave the emperor's dominions with an intention never to return incur this penalty. Nothing proves that Koszta left those dominions with any such intention. The contrary is far more probably the fact. Hft with Kossuth and others tied across the frontier into Turkey, as a place of temporary refuge, and, if we may believe what Kossuth, their acknowledged chief, has repeatedly declared, publicly and privately, with the intention and the hope of speedily returning. For what else did Kossuth, from whom in this matter we cannot separate Koszta, solicit "material aid" of our tender-hearted citizens, and purchase saddles and bridles, but to enable him to return, as he hoped at an early day, within the emperor's dominions? How will you, then, bring Koszta under the operation of the imperial decree? Has Austria ever declared him to have forfeited, under that decree, all his civil and political rights? Has she enforced that decree against him? We do not understand even Mr. Marcy to maintain that Austria has actually condemned Koszta as an unlawful emigrant, and deprived him accordingly. If she has not, the law has not been enforced against him, and he has suffered nothing by it, and even if it was intended to operate his release from his obligation of allegiance, it has not so operated. Before he can plead it in his favor, he must show that it has been enforced, or attempted to be enforced, to his damage.

         Mr. Marcy argues that the position of Koszta deprived of all his civil and political rights, and not released from his subjection, would be very hard, and much worse than that of absolute alienage. Very possibly. But the loss of those rights was imposed as a penalty, and we never understood that penalties were intended to be easy. It is harder to be condemned to imprisonment for life than it is to be a simple alien; but can yon thence infer that a prisoner so condemned is absolved from his allegiance. Cannot a penalty be lawfully imposed, unless compensated by a corresponding benefit conferred in incurring it'. The condition of Austria would be hard, too, if Mr. Marcy's interpretation of the decree in question must be accepted. She could make no extradition treaties, because all such treaties proceed on the supposition that the fugitives from justice, though out of his jurisdiction, remain subject to their sovereign. Her subjects, guilty of a crime, would have only to cross the frontier into a neighboring state, with an intention of never returning, in order to be for ever released from their allegiance, and to be for ever, even if found in her dominions, free from her penal justice. It is singular, if such is the meaning of that decree, that France, England, and the United States, the powers that advised, perhaps forced, certainly encouraged, the Ottoman porte not to give up the Hungarian refugees, never discovered it, and made no use of it in 1849-50. They contented themselves with informing the porte that she was not bound by treaty to give them up; now much stronger and more to the purpose to have told her to reply, that those refugees were unlawful emigrants, and as such, by the laws of Austria herself, released from their allegiance,—that they were no longer her subjects, and she had no longer any authority over them! But they advised no such answer. Mr. Marcy was not then, we believe, in the cabinet.

         But the imperial decree Mr. Marcy cites is municipal, not international law. Austria has the sole right to interpret her own municipal laws. She has not interpreted this law in the sense of Mr. Marcy, but has shown us plainly that, in her interpretation, it either does not apply to him at all, or if it does, it does not release him from his subjection to her authority, or deprive him of his character as her subject. She claimed his surrender to her by Turkey, as her subject; when she waived for the moment that claim, she insisted on his removal from her frontier, and his confinement at Kutahia, as her subject; and as her subject she consented to his liberation, on condition of his never setting his foot again on Ottoman territory. This is conclusive against Mr. Marcy as to the operation of the imperial decree of March, 1832, for he cannot go behind Austria's own interpretation of her own municipal laws.

         The argument drawn from the imperial decree, then, it appears, must be abandoned. Then Koszta was an Austrian subject at the time of his arrest at Smyrna, unless Austria, by consenting to his release from Kutahia on certain conditions, released him from his allegiance. This, Mr. Marcy contends, was the case, for he maintains that by doing so she banished him, and lost all her authority over him. As long as the conditions of the banishment, if banishment it was, were complied with, it may be so; but banishment, unless such be the intention of the sovereign, does not absolutely, and under all circumstances, dissolve for ever all connection between the sovereign and the subject. It is usually accompanied with an alternative, and if the banished person returns he is liable to suffer it, and, though he may not resume all his original rights, there is no doubt that the sovereign resumes all his original authority, and may at his pleasure pardon or punish him. But we do not admit that, strictly speaking, Austria banished Koszta. PIe was liberated by her permission indeed, on the condition of leaving and never returning to Turkey; but not at her instance, or, so far as appears, by her wish. It was done at the earnest solicitation of France, Great Britain, and the United States, the friends of the Hungarian refugees. It was a permission to go into voluntary exile, rather than banishment. If it released Koszta from his subjection to Austria, it did so only conditionally, and only so long as the condition was complied with. The authority of the sovereign survived in the conditions imposed, and resumed all its original vigor when they were broken.

         The condition on which Koszta was liberated, M. Hiilsemann positively asserts, was, that he was "never to set his foot again on Ottoman territory." M. Hiilsemann says Koszta gave a written pledge to that effect. Mr. Marcy thinks this is doubtful, but he cannot mean that it i6 doubtful that the condition asserted was imposed, for he contends that Austria procured 1)is expulsion from Turkey, and argues thence that she sent him into perpetual banishment. When, therefore, without permission from Austria, he returned to Turkey last spring or summer, he broke the condition of his liberation, and necessarily fell back into his former character of a subject of his Imperial and Apostolic Majesty, who resumed at once all his original authority over him. He was, therefore, at the time of his arrest at Smyrna, an Austrian subject, as he himself confessed; for when he was asked if he was an American citizen, he replied, as our charge d'affaires ad interim at Constantinople acknowledges, "I am a Hungarian, and I will live and die a Hungarian." If a Hungarian, an Austrian subject. Mr. Marcy would like to deny this confession, but he does not, and cannot; and he tries to neutralize its damaging effect by suggesting that there was, in Koszta's mind, a great difference between a Hungarian and an Austrian subject. But there was no difference that Koszta could entertain without disloyalty, and none at all that Mr. Marcy, in an official document, could recognize without disrespect to Austria.

         The nationality of Koszta being .proved to have been Austrian, at the time of his arrest, the question raised by Mr. Marcy, as to the American nationality he had acquired by having declared his intention to become an American citizen, and by having been domiciled in the country, however important and even delicate it may be in itself, becomes quite unimportant in the case before us. We are for pushing the rights of American nationality to the full extent admitted by international law. The citizens or subjects of foreign states, free to expatriate themselves, who are naturalized here according to the forms required by our laws, are clothed with a perfect American nationality, and, save as to the eligibility to the offices of president and vice president of the United States, stand on the same footing with natural-born citizens, have the same rights and the same duties, and our government has the same right and the same duty to protect them, even against their former sovereign.* But those citizens or subjects who have not " faithfully performed the past and the present duties resulting from their relation to the sovereign," not being free to expatriate themselves, cannot be clothed with a perfect American nationality, without a release of their allegiance by their sovereign, who may attach to the release such conditions as he judges advisable for his own safety or the peace and welfare of his subjects. If, then, Koszta, who, if released at all, was released from his obligation of allegiance only on condition of never returning to Turkey, had gone through all the forms required by our naturalization laws, he would have had no American nationality that could avail him in the Ottoman dominions against Austria. Yet, except against Austria, either in her own or the Ottoman dominions, his American nationality would have been perfect. We suppose that J>y no acts of ours, or of his own, can a criminal or fugitive from justice be absolved from his allegiance to his sovereign, or that sovereign deprived of his authority over him.

         Koszta's declaration of intention to become an American citizen did not make him one. Such a declaration of itself imparts no nationality, confers no rights, assumes" no duties, and is, in respect of nationality, of no value at all, save as evidence of domicile. It may, we presume, be adduced as evidence to establish the animus manendi. Mr. Marcy is right in resting Koszta's American nationality mainly on the fact of his having acquired an American domicile. That domicile imparts a certain nationality is unquestionable, and' it gives the government the right to protect the domiciled subject as an American citizen, against all the world, if it chooses, except his sovereign. But domiciled persons are still foreigners, and remain subjects of the sovereign to whom they owed allegiance before taking up their residence in a foreign country, and hence, under the mild laws of nations, they cannot be compelled to bear arms against him. But however great the nationality acquired by domicile, it is always imperfect, and can never be set up, as Mr. Marcy appears to assert, against citizenship. In every case of conflict, the former must yield to the latter. Conceding, then, that Koszta had acquired an American domicile, it did not absolve him from his allegiance to Austria, nor give us the right to protect him against her authority.

         But it may even be a question, if Koszta had not, by his absence from the country, lost his American domicile. Domicile is very easily lost, for it depends in great measure on intention. Mr. Marcy says he left the country on private business, intending to return immediately; but that is very difficult to prove. Supposing it to be true that such was his intention on leaving the country, he may have changed his mind afterward, and so lost his domicile. If he was found at Smyrna, making arrangements to return, that is not conclusive, for they may have been intended to deceive, and his intention may have been an afterthought, formed in consequence of events or dangers coming to his knowledge after leaving the country. The certificate of his declaration of intention to become an American citizen would, at best, only prove that at the time he made it he intended to remain in the country, but could be no evidence that he had not subsequently changed his intention, as he well might have done, and as it is fair to presume from his antecedents, his political connections, the avowed object of his party, and the events that were occurring or evidently about to occur in the East, he had done. We do not believe that there is a court in Christendom that, on the facts in the case as publicly known, would decide that at Smyrna he still retained his American domicile. If not, he had there, as deriving from domicile, no American nationality at all.

         Mr. Marcy seems to be aware of this, and filially rests Koszta's American nationality on the tezkereh, or certificate of American nationality, granted him by the American legation at Constantinople. J That the American legation, so »* far as the laws of Turkey are concerned, had the right to grant such a certificate, we do not doubt. It is a right enjoyed by the representatives of all Christian powers, in the Ottoman empire, of taking under their protection their respective countrymen, and such others of their own religion, not subjects of Turkey, as they choose to clothe with their nationality. But this is a simple conventional right, wrung by the Latin princes in past times from the porte, and is a perfect right only as between Turkey and the party granting or receiving the certificate. It withdraws him to whom it is conceded from the Turkish jurisdiction, and places him, as against Turkey, under that of the power conceding it. But as it is a conventional right, founded on treaty, not on international law, it is, as between the Christian powers themselves, at best only analogous to the right of domicile, and therefore of no force when it comes in conflict with —' citizenship. Mr. Marcy considers that it places him in the same condition with a member of a trading factory in the East. The member follows the nationality of the factory. An Englishman or American, domiciled, so to speak, in a Dutch factory, is reputed a Dutchman. This is so, except as against his sovereign. As against his sovereign, his property is Dutch, but he himself remains English or American, and therefore the Dutch could not claim or protect him personally against the English or American sovereign. | The tezkereh that Koszta received gave him in the Ottoman dominions only the rights of American nationality that he might have acquired from simple American domicile, which gave neither him nor ns in regard to him any rights as against Austria, whose subject he was./''

         The simple fact is, that Koszta, on returning to the Ottoman dominions, was an Austrian subject, and clothed with no American nationality at all available for him or for us against Austrian authority. Mr. Marcy, no doubt, makes out a strong case of our right to protect Koszta against all the world, except against Austria, the precise point he was required to make out. Not succeeding in making out this point, his whole argument, however elaborate, able, and ingenious, falls to the ground, and however valuable his letter to M. Hiilsemann may be in preparing the way for him to succeed General Pierce as president of the United States, it is worthless as an official reply to the complaint and demand of the Austrian government.

         The remaining questions are now easily disposed of. Koszta being in Turkey an Austrian subject, we had no more authority over him than over any other Austrian subject, and no more right to interpose between him and his sovereign. If his arrest was illegal, the illegality was not against us or to our prejudice; it contravened no right of ours, and was a matter wholly between him and his sovereign, and we had nothing to do with the question. The illegality, if there was any, was not even against Koszta himself, for his sovereign had, so far as he was concerned, the right to arrest and detain him. If he had not the right to arrest on Turkish territory, it was not Koszta's right that stopped him, but the territorial jurisdiction of Turkey. If the arrest was a violation of that territorial jurisdiction, as it was not a violation of it to our prejudice, it was a matter to be arranged between Austria and Turkey, without our interference. If then Koszta was arrested out of Austrian jurisdiction, as he was arrested by the authority of his lawful sovereign, we had no right to interfere by force to liberate him from Austrian custody within Austrian jurisdiction.

         But we do not concede that the seizure and detention of Koszta were unlawful even as against Turkey. He was arrested and carried on board the Huszar, and detained there by authority of the Austrian consul-general, "exercising," as M. Hiilsemann officially asserts, "the right of jurisdiction, guarantied by treaties to the consular agents of Austria in the East, relative to their countrymen." If so, he was lawfully arrested and detained, and whether he was arrested by " ruffians" or not, is nothing to the purpose, so long as they acted under lawful authority. Our own police agents are not always gentlemen, and sometimes have been known to handle their subjects somewhat roughly; but we have never understood that therefore their arrests were illegal.

         Secretary Marcy takes it upon himself to doubt the existence of the treaties alleged by Austria. This is somewhat bold, and perhaps rash. Austria officially asserts them, and Mr. Marcy cannot respectfully doubt her assertion without good reasons. Has he such reasons? What are they? As near as we can recollect, "the whole subject was discussed in 1849-50, on a demand of Austria for the surrender of the Hungarian refugees; France and England gave it as their opinion, that the porte was not bound by treaty to give them up; Lord Palmerston, who had some portion of the treaties under his eye, thought that the most that could be made of them was, that the porte might be required to expel them from its dominions; in fine, the refugees were not mended the heroic refusal."

         That the whole civilized world justified and commended the refusal, is too strong an expression. Austria and Russia, we believe, constitute a portion, and a considerable portion of the civilized world, and they did not commend or justify it, and, so far as there is any evidence on the subject before the public, it was justified and commended, out of the whole civilized world, by France, England, and the United States alone. These are indeed important nations, but they are not the whole civilized world. But that these justified and commended it, amounts to nothing; for they were known sympathizers with the Hungarian rebels, and England and the United States favored their cause, and were on the point of acknowledging the independence of Hungary, when, by the united arms of Austria and Russia, the rebellion was suppressed. Nothing is more natural than that they should use their utmost efforts to screen their friends from the penalty they had incurred. They advised Turkey to refuse, promised her their protection if she refused, and threatened her pretty loudly if she did not refuse to surrender them. They were a party concerned, given up, and the whole at least a party acting on a foregone conclusion, and therefore are not to be taken as umpires in the case. Austria and Russia did not accept them as such, and never retracted their demands. Lord Palmerston's opinion, interested as he was to protect his continental pets, we place on a par with Mr. Marcy's own opinion. Moreover, we are not aware that the porte absolutely denied her obligation to surrender the refugees. Mr. Marcy cites no official declaration of hers to that effect, and as for the testimony of individual Turks, we let it pass for what it is worth. As Turkey will not admit the testimony of a Christian against a Turk, we do her no wrong if we refuse to admit the testimony of a Turk against a Christian. The fact is, the matter was not pressed to a decision; Austria generously consented, out of regard to the state of Europe at the time, and the embarrassment of the porte, to waive for the moment her demand, on condition that the porte undertook to remove the refugees from the frontier, and to keep them confined in the interior of Turkey. To this condition the porte acceded, and the fact that she did so, backed as she was by France, England, and the United States, and therefore with nothing to fear from Austria, is a strong presumption that she was bound to the extent Austria asserted. Mr. Marcy's reasons do not seem to us, therefore, sufficient to impugn the official veracity of Austria, or to render doubtful the existence of the treaties alleged.

         The secretary reasons throughout as if the laws of nations applied to Turkey and the Mahometan world as they do to the several states of Christendom. This is a great mistake. The international law of Christendom is not recognized by Mahometan states, and does not govern the mutual intercourse between them and the Christian powers. "The European law of nations," says Wheaton,* "is founded mainly upon that community of origin, manners, institutions, and religion, that distinguished the Christian nations from the Mahometan world. In respect to the mutual intercourse between the Christian and the Mahometan powers, the former have been sometimes content to take the law from the Mahometan, and in others to modify the international law of Christendom in its application to them." The Mahometan world is outside of the European law of nations. Thus the Ottoman empire was not represented in the congress of Vienna, nor included in the system of public law established by it. It is in the eye of international law a barbarous power, and the relations of civilized nations with it, except so far as regulated by treaties, are subject to the law of force, or of what each Christian nation regards as expediency. We are not, therefore, to judge the conduct of Christian powers, in their intercourse with her, either by the international law of Christendom, or by the jus gentium. She acknowledges neither in relation to Christian nations, and Christian nations are bound to observe neither in relation to her. Austria, we suspect, in the absence of all treaty stipulations on the subject, would have the right, if she chose to exercise it, to pursue her offending subjects across the frontier, and to arrest them on Ottoman territory.

         But without resorting to this argument, the conduct of Austria is perfectly defensible, for she really has the jurisdiction she claims. "The resident consuls of the Christian powers in Turkey, the Barbary States, and other Mahometan countries," says Wheaton,* "have civil and criminal jurisdiction over their countrymen, to the exclusion of the local magistrates and tribunals. The criminal jurisdiction is usually limited to pecuniary penalties, and in offense of a higher grade the consular functions are similar to those of a police magistrate, or judge Instruction. He collects the documentary and other proofs, and sends them, together with the prisoner, home for trial." Wheaton is ample authority in the case; besides, the fact is notorious, as Mr. Marcy ought to know perfectly well. We cannot see wherefore this does not cover the whole case. Koszta was an Austrian subject, in the Ottoman dominions under Austrian authority, and was arrested and detained in custody on board the Huszar, to be sent home by authority of the Austrian consul, exercising that right of jurisdiction which the consular agents of Austria, and not only hers, but those of all the Latin powers of Europe, have relative to their respective countrymen in the East. This, as far as we can see, settles the whole question, and proves that the attack on the Austrian flag by Captain Ingraham was wholly unjustifiable, and an insult of which Austria had the right to complain, and for which our government was bound to make her suitable reparation.

         We have heard it argued that this civil and criminal jurisdiction of the consular agents of the Christian powers in Turkey is limited to offenses committed in the Ottoman dominions. But that is a matter between the consular agents and their own sovereign. Their sovereign is competent so to restrict their jurisdiction, and, perhaps, in general does. But Austria had not so done in the case of her consul-general at Smyrna, as we have her own authority for asserting; and if she had, the reappearance of Koszta in Turkey, which, according to Mr. Marcy, had been inhibited to him, was itself an offense that brought him within even such restricted jurisdiction. But to suppose that any limitation of the sort is imposed. by Turkish law is wholly to mistake the principle on which the consular jurisdiction within Mahometan states is founded. The populations of the East are immiscible. Foreigners from Christian nations, or what is sometimes in the East called Frankistan, are incapable of acquiring a domicile in any Mahometan country, of mingling with the body of the nation, or of becoming a recognized part of the population under the protection of the territorial laws, unless they apostatize and make themselves Muslims. They are, whether travelers or traders, outside of the lex loci,—are outlaws, under the protection of no law, and may be put to death, shut up in prison, or reduced to slavery, for no offense but their nationality. There is for them in Turkey and other Mahometan states no jus gentium, no hospitality. To them Turkey is inhospitable, and absolutely barbarous, although some of our statesmen seem, of late, to have fallen very much in love with her. Nothing can be more insecure, inconvenient, and perilous, than the condition of foreigners from Frankistan in Mahometan countries; and hence the Christian powers, the Venetians and Genoese first, the other Latin powers afterwards, interposed to protect their own subjects in these countries, and, at a remote period, obtained the right to take their own countrymen, really or reputed such, under their own protection, as we have seen in the tezJcereh, and to exercise extra-territorial jurisdiction over them, as we have done recently by treaty with China relative to our own countrymen in the Chinese dominions,—that is, the right of civil and criminal jurisdiction over their own subjects within Mahometan territory The theory of the consular jurisdiction is founded on a legal fiction, similar to that which obtains in Christian states with regard to ambassadors, ministers, and other diplomatic agents. Foreigners from Frankistan are ignored by Turkish law, are reputed not to be in Turkey at all, but still in Frankistan, within the jurisdiction of their own sovereign, and which is as perfect in regard to them as if they were actually in his own dominions. This right of jurisdiction is conceded in the treaties by which Turkey agrees to receive consular agents, and follows, so far as she is concerned, as a necessary consequence of their exequatur. The extent of this jurisdiction, the offenses of which the resident consul may take cognizance, what penalties he may inflict, &c, are determined, not by Turkish law, but by the consul's own sovereign ; and therefore, as to Turkey, it makes no difference what is the offense, where it is committed, or what is the judgment rendered. Conceding, then, that Koszta's offense was committed out of the Ottoman dominions, it makes no difference, if the Austrian resident consul had from his own government authority to make the arrest, which Austria herself assures us he had.

         Mr. Marcy argues, that the Austrian consul had doubts as to his jurisdiction, inasmuch as he applied to the Turkish governor for authority to arrest Koszta, which was refused. We suspect that there is some mistake here. The consul had no occasion to apply for such authority, for such authority Turkey, so far as she was concerned, had granted him in conceding him his exequatur. It is more probable that his application, if there was any application at all, was not for authority, hut for the physical force, to make the arrest. Or it may have been for the governor himself to arrest Koszta, which he was bound to do by the pledge Turkey had given to Austria, that he should never again set his foot within her dominions. Whichever it was, it would appear that the governor had no right to refuse, for Austria, unless we have been misinformed, through her internuncio at Constantinople, complained to the porte of his refusal, and demanded his punishment, which demand was complied with so far as to remove him from his office. The right of the consular agents of Austria in Turkey to exercise civil and criminal jurisdiction relative to their own countrymen is unquestionable ; but how far Turkey is bound by special treaty to grant them the physical force necessary to exercise their jurisdiction, to make their arrests, and to execute their judgments, we are unable to say; and this we suspect was the real point in debate in 1849-50 concerning the surrender of the Hungarian refugees.

         Mr. Marcy further alleges, that Captain Ingraham was justifiable on the score of humanity in making his hostile attack on the Huszar. That there may be cases where humanity, or the jus gentium, authorizes a party to interfere, we do not doubt; but not often among civilized powers, between sovereign and subject. There was in Koszta's case no call for such interference. An Austrian subject was arrested within Austrian jurisdiction, by Austrian authority, placed in Austrian custody, with the probability of being sent home and punished for his crimes. Here is the whole case. There was no inhumanity here, for it is for the interest of humanity that crimes, especially such as were laid to Koszta's charge, should be punished. Some stress of which he was accused and had been condemned were purely political offenses, which in the eyes of many of our countrymen, as committed against Austria, were no crime at all, but meritorious acts rather; but this we believe is a mistake. The special charge against Koszta, we believe, was complicity in a stupendous robbery, or the purloining and concealing the Hungarian regalia, and the main motive of getting possession of him was not to bring him to punishment for his political offenses, but to obtain from him some clew to the place where the sacred treasures were concealed. Perhaps, after his arrest, he gave the clew, and perhaps his having enabled the court to recover them is the reason why Austria has consented to his returning to this country.

         The government theory of Koszta's case, it is evident from what we have proved, is untenable. Koszta was not at Smyrna, as it contends, a man without any nationality, under the simple law of nature, nor was he clothed with our nationality, as against Austria, who if she had banished him at all, had done so only on conditions, which were broken by his return to the Ottoman dominions. The most that can be said in our favor is, that he was domiciled in the United States, or was under American protection so far as the right to such- protection is conferred by a tezkereh, a right only analogous to that of domicile. To set up domicile against citizenship is not in any case allowable, and certainly not in the case of a fugitive from justice or an escaped convict; for such a citizen or subject of a foreign state, not having faithfully performed his past and present duties to his sovereign, is incapable of absolving himself, even according to the government's own doctrine, from his allegiance, and forming new political ties. Even naturalization, without the permission of his sovereign, would not protect such a one, much less domicile. Mr. Marcy, having failed to prove that Austria had denationalized Koszta,— and she by claiming him as still her subject having proved that she had not,—cannot claim for our government the right to protect him against her without assuming that domicile overrides citizenship, which is absurd, and warranted by no writer on international law and by no decision of any court applying it. The property of a subject in or destined to a country in which a foreigner is domiciled follows, as a general rule, the domicile, and in case of war may be treated as an enemy, because it may be lawfully taxed for the support of the war; but the domiciled subject retains his personal status, and in ease of war is regarded by his sovereign as a friend, unless found actually consorting « with the enemy, because he is held to be still his subject, though out of his jurisdiction; and the sovereign in whose dominions he resides cannot lawfully compel him to bear arms against him. He is liable to be ordered out of the country, or into the interior, or even to be imprisoned during the war by the foreign sovereign as the subject of his enemy, if it is judged expedient or necessary. To set up domicile against citizenship would, moreover, be on the part of our government a complete abandonment of all American citizens domiciled in foreign countries, and to deprive itself in all cases of all right, on the ground of American citizenship, to interpose in their behalf, or to look after their interests against the sovereign in whose dominions they reside, for it would regard them as absolutely released from all civil connection with their own country. This, perhaps, will not be regarded by our citizens abroad as the best way to fulfill the promise of President Pierce, that his government would extend its protection to every American citizen, in whatever part of the world he might be, and accords but ill with the earnestness with which we assert the rights of American nationality, when it concerns protecting foreign criminals and political incendiaries against their legitimate sovereign. It would have been not amiss for Mr. Marcy to have reflected that his doctrine has a twofold application, and may give to foreign sovereigns as much power to withdraw our citizens abroad from the protection of our government, as it gives it to withdraw their criminal subjects from their justice.

         Mr. Marcy argues, that his doctrine, which allows foreign political incendiaries and criminals to come here, and, after a few months' residence, to return to their own country, on private (who shall prove that it is not secret?) business, clothed with American nationality, and protected by it from all prosecution or punishment for their previous offenses, has in it nothing dangerous, because if they should engage in any new incendiary proceedings, it would be a manifest abuse of our nationality, and prove that they fraudulently assume it. We are sorry to meet with such an argument from a veteran statesman, venerable for his years and experience, and still more sorry to find it put forth officially by the government of our native country, whom we love as a mother, and of whose honor we are more jealous than of our own. Does so experienced a statesman need to be told, that the very presence of these political incendiaries at large, in a country they have endeavored to revolutionize, may often of itself be a grave peril, and tend to compromise the public peace? Does he need to be told, that such men work in secret, and that no little mischief may be done before they can be detected or be proved to have a hand in it? Can it, in the present state of things, fail to be dangerous to have all Europe and the East swarm with well-known revolutionists, who, under protection of American nationality, are free to go wherever they please, making their observations, collecting information for the benefit of the revolutionary party, and secretly communicating with the revolutionary committees and clubs, especially if we have such ministers or charges d'affaires at the several courts as Mr. Seymour at St. Petersburg, Mr. Sonle at Madrid, Mr. Brown at Constantinople, and Mr. O'Sullivan at Lisbon, and our ships in the ports of Europe and Asia to claim them as American citizens, and, if necessary, to protect them as such by making war on their sovereign, and compelling him, as the less of two evils, to acquiesce in the claim? It is not only dangerous, but is a gross abuse of the advantages of our position. It is incompatible with the respect which we owe to all foreign governments with which we profess to have relations of peace and amity, and exceedingly discreditable to our national character. For the peace of foreign states, for the interests of social order, for the honor of our own country and the sake of our citizens traveling or residing in the continental states of Europe, we hope our government will not persist in the abominable doctrine, which foreign radicals, refugees, robbers, thieves, cutthroats, and political incendiaries have induced it in the Koszta case to sot up, and that it will hasten to retrieve its character, by retracting it, and making honorable and suitable reparation to Austria.

         Even on the government's own theory of the Koszta case, the attack on the Huszar is hardly defensible. Mr. Marcy, in his reply to M. Hiilsemann, assumes that Captain Ingraham's violation of the neutrality laws, by threatening, in a neutral port, to fire on the Huszar, if an offense at all, was an offense only against Turkey, and is a matter to be settled between us and her, without the interference of Austria. If this principle holds in the case, it holds against as well as for us, and proves that Captain Ingraham had no right to interfere by force to liberate Koszta from his imprisonment on board the Austrian brig-of-war. The laws of nations prohibit foreign powers from fighting out their quarrels on neutral territory, or in a neutral port; they therefore make the neutral power the guardian of the neutrality laws, and responsible for their breach. If, then, Turkey suffered the neutrality laws to be violated, she having the power, as she obviously had, to prevent it, the principle on which we held Portugal, a neutral power, responsible for the loss of the privateer General Armstrong, captured or destroyed by a British man-of-war in one of her ports. It is the principle we have recently set up against the free city of Bremen, in a case very similar to that of Koszta. A certain Mr. Schmidt, claimed by us as a naturalized citizen, was arrested by the Hanoverian police within the jurisdiction of Bremen, as a subject of the king of Hanover. We held Bremen responsible, and refused to recognize Hanover in the case. If the principle was good in the case of Mr. Schmidt, why not in the case of Mr. Koszta? The reason, we suppose, is, that neither we nor Austria regard Turkey as a civilized power, and neither yield her the benefits nor expect of her the obligations of such power.

         Turkey being a barbarous power, outside of the law of nations, neither party could make any account of her rights or duties in the case. Neither party, except so far as bound by treaty, could offend her, or make her responsible for any wrong received from the other party. The proper course, then, for the American authorities at Smyrna, after dress of the aggrieved this is the Koszta was actually in Austrian jurisdiction, as he was when on board the Huszar, whatever was the case on land, was to have protested in the name of their government against his arrest and detention ; and if this did not procure his release, as Austria is a friendly power, and acknowledges herself amenable to international law, to have remitted the case to the supreme authority, to be disposed of by the diplomacy of the two nations. This would have been in accordance with the general usage in similar cases, and would seem to have been demanded, if not by the law, at least by the comity of nations. There was no urgency in the case. Koszta, if in any danger at all, was in no danger of immediately losing his head, for Mr. Marcy takes special care to inform us, that the danger which induced Captain Ingraham to make his hostile demonstration was simply that he would be conveyed to Trieste, within the emperor's dominions. We had at the emperor's court a representative to look after Koszta's interest, and it is idle to pretend that Austria would have condemned him, or punished him under a previous judgment, if we were able to make good our claim to him as an American citizen. Policy, if not a sense of justice and respect for international law, would have restrained her. Our distrust of her in this case may well be construed into a distrust of our own claim. The threat to employ force, the actual demonstration of force, for his liberation, was a rash act, extremely imprudent, and might have been attended with the most fatal consequences; and that war has not followed with Austria, we owe to her prudence or forbearance. The act was, especially when approved by Captain Ingraham's government, literally an act of war; and it can never be for the interest of any nation to intrust the war-making power to its naval officers abroad, to be used at their discretion. It is not compatible with the peace of the world that they should possess it, and we hope that the act of Captain Ingraham will never be suffered to become a precedent. If such acts are to be approved and applauded, instead of rebuked and punished, ships of war will soon be converted into corsairs, and their commanders into pirates.

         As to Captain Ingraham himself, we. have nothing to say. He is doubtless an honorable gentleman, as well as a brave and efficient officer; but in the present case, he mistook his duty, and suffered his zeal to get the better of his judgment. But as his government has approved his conduct, we must hold it, not him, responsible for the insult offered to the Austrian flag. He probably was not initiated into the plot, and was used as a blind tool by the revolutionists. The secret of the whole transaction it is not difficult to divine. It was not to vindicate American nationality or to protect the rights of the American citizen, but to get up, if possible, a war between this country and Austria, in accordance with the plans and ardent wishes of Ludwig Kossuth. Kossuth found, on his visit to the United States as the "nation's guest," that our people generally sympathized with him, and that perhaps a majority of them were not averse to intervening actively in his cause, if any plausible pretext for doing so could be found. But he was convinced that, however ready we were to feast him, make speeches and pass resolutions in his favor and denunciatory of Austria, we could not be induced to go to war with Austria avowedly on the principle of intervention. It was necessary, then, to obtain for us some pretext, under which the president, as in the case of Mexico, a few years since, might announce to congress, "'War exists between the Austrian empire and this republic, by act of Austria herself." No matter if the statement should be utterly false, if it could be made to appear to be true, congress would vote an army and supplies, and the people would sustain it. It was necessary, then, to provoke Austria to the commission of some act which we could represent as a gross violation of our rights, or as a declaration of war against us. For this purpose, we doubt not, Koszta returned, or was ordered by Kossuth to return, to Turkey, and very possibly with the knowledge and approbation of our Jacobinical administration. It could very easily be foreseen that Austria would attempt to arrest him, as implicated in the abstraction and concealment of the Hungarian regalia, which she was exceedingly anxious to recover, and out of this arrest it was thought it would not be difficult to get the desired pretext for war. The whole was an artfully devised plan for inducing the United States to intervene with their physical force in favor of Kossuth and Mazzini, who had combined to establish Hungarian independence, and to expel the Austrians from Italy.

         The whole difficulty, we need not doubt,. grew out of our insane sympathy with the rebellious subjects of Austria, and their efforts to involve us in the contest, suspended by the Austro-Russian victories of 1849, the suppression of the Roman republic by republican Franco in the same year, and Louis Napoleon's coup d'etat of December, 1851. The plans of the revolutionists were well laid. They were secretly organized throughout all western and central Europe, but they did not choose, as in 1848, to rely wholly on themselves. They had two powers to fear, and only two,— Austria and Russia; and their plan was to neutralize Russia by means of Turkey, and Austria by means of a war between her and the United States. England they could count on as a friend, to back Turkey morally, perhaps physically, against Russia, because she has made it her policy to aid them in all the continental states ever since the congress of Laibach, and because her commercial interests as well as her East Indian possessions required her to resist the further progress of the Russian empire. France also, it was trusted, could be gained, through jealousy of Russia, and through a desire to extend her influence in Italy, to weaken Austria, to reannox Belgium, perhaps also Savoy, and to gain the protectorate of the smaller German states, to make common cause with England against northern and eastern Europe. All then that was wanting was to gain this great republic, with its vast resources and overflowing treasury, to the same cause. This it was hoped to do by getting up a quarrel between us and Austria.

         Austria understood the plan of her enemies, and could not be caught in the trap, and, judging from the conditions offered and accepted by our minister at Constantinople for the release of Koszta, she has come off, so far as we are concerned, with honor, while we stand before the world in a most unenviable light. But France and England appear to have caught the bait, and the prospect now is that Europe must either succumb to the demagogues or become Cossack. To all appearances, a war between Russia and Turkey is inevitable. Hostilities, it is reported, have actually commenced, and Turkey has assembled as formidable an army as her resources admit of, officered to a great extent by renegade Austrian and Russian subjects; and it would seem, at the time we are writing, that France and England are prepared to lend her even more than their moral influence. Thus far Kossuth and Mazzini, except with us, have apparently succeeded in their plan, and France and England are playing their game, if not in reality the ulterior game of Russia herself.

         It strikes us that, if France and England are really bent, as they pretend, on maintaining the balance of power threatened or assumed to be threatened by Russia, they adopt very unwise means to effect their purpose. The real mediating power of Europe is Austria, and whether it be the purpose to guard against the demagogues of the South and West, or the absolutism of the North and East, she should be regarded as the point d'appui of all the operations required. As we understand it, two dangers threaten European civilization, anarchy and despotism, the demagogues and the Cossacks, the revolutionists of the South and West, and Russia from the North and East. The western powers, leaving out Austria, are impotent against either danger. England can keep down a revolution at home only by encouraging revolutions abroad, and France is still the hotbed of demagogie, and which the emperor prevents from breaking out in open insurrection and revolution only by adopting some of the worst elements of socialistic economy. His vast expenditures on public works and modern improvements, avowedly for the purpose of giving employment to the workingmen, cannot be continued for many years without alienating from him the tax-paying classes, and when discontinued, a whole army of workmen are ready to find employment in making revolutions. The moment that the revolutionists succeed, or have a fair prospect of succeeding, in detaching Hungary and the Lom bard o-Venetian kingdom from Austria, all central Germany, and every western dynasty, unless Russia intervenes, are at the mercy of the demagogues. On the other hand, if Austria is dismembered, and reduced to her German provinces, nothing, humanly speaking, can prevent Russia from occupying the seat of the ancient empire of the East, and ruling all Europe and Asia. Nothing can be made of that rickety old concern, the Ottoman empire, which has exhausted all her resources in her present very inadequate efforts to maintain her independence and integrity. The only safety of the western powers is in cultivating the friendship of Austria, and in enabling her to extend and consolidate her power, so that she can rely on them, and be able to make the balance incline to the side on which she throws her weight.

         If France and England, the two leading powers of the West, were sincere and earnest to maintain the balance of power, their first effort would be to detach Austria from Russia, and make it for her interest to unite with them. But this is precisely what they have neglected to do. They have both been hostile to her. They prevented her from intervening; to protect the Swiss Sonderbund in 1847, which would have prevented the terrible convulsions of the following year; they armed in 1848 all Italy against her, and prevented her from pushing her advantages as far as she Lawfully might against Sardinia, who had twice made unprovoked war upon her. without a shadow of a pretext; they stirred up a rebellion against her in her own capital, and encouraged her Hungarian subjects to revolt, and compelled her to invoke the assistance of Russia; and on the reorganization of the German diet, they protested against her entering it with her non-Germanic provinces, a measure so essential to the maintenance of the balance of power, and which could have endangered the safety of no European state. Even the French army which suppressed the Mazzinian republic was sent to Rome avowedly to maintain French influence in Italy against Austria, and it is probably maintained there for the same purpose, and perhaps also with the vain hope of ruling the pope, and through him the Catholic populations of Europe,—a .policy attempted by Napoleon the uncle, with all the success it deserved. The hostility of France and England in 1848 and 1849 drew Austria into a close alliance with Russia, and their present designs make it for her interest to continue that alliance; for if she has something to fear from Russia, she has still more to fear from them. All this we should call a blunder on their part, and its sad effects will be long felt in European politics. In the present struggle Austria will remain neutral, if permitted, and if not, she must take sides with Russia, who will gain the chief advantage.

         As far as we can see, Russia, as against Turkey, is in the right. Her demands are just and reasonable, as all western Europe has virtually decided in the Vienna note. She simply demands that her treaties with the porte in behalf of the Christians of her communion shall be executed, and that a sufficient guaranty of their execution shall be given. There is nothing wrong in this. The sultan pledges his word that they shall be, it is true, but that is just no security at all. All concessions in favor of Christians, whom the Turks regard as slaves and treat as dogs, are contrary to the Koran, the supreme law of every Mahometan state, and are regarded by the Turkish judges as non avenues. The Christian power must have an acknowledged protectorate over the Christian subjects of the porte, or the treaties in their favor are so much waste-paper. Russia knows this, and demands the protectorate of the Christians of her communion. But this, say France and England, will give her too much control over the internal affairs of Turkey. Be it so. Why, then, not compel Turkey, their protegee, to emancipate all her Christian subjects, of whatever communion, to place them and their religion under the protection of the law? This would supersede the necessity of Russian interference, and take away all pretext she may have for interfering. If they will not do this, they have no right to complain of her for taking upon herself the protection of the Christians of her own communion. The Christians of the Ottoman empire have long enough been the slaves of the insolent and fanatic Turks, and religion, civilization, humanity, demands their emancipation, their elevation to the status of citizens, and their free and full possession of the liberty of worship, and the western powers, if they neglect their duty in this respect, have no right to interfere to prevent Russia from doing it.

         It is for the interest of Christendom, of European civilization, and of common humanity, that an end be put to the Mahometan power, and it is a scandal to find Catholic France combining with heretical and pope-hating England T*" to uphold it. Russia is a schismatical power, and no friend to Catholicity; but she is morally and religiously as good as Protestant England, and however we may dislike her political system, she succeeds better in winning the affections of the nations she subjugates than England does in winning the affections of those she professes to assist and for whom she really pours out her blood and her treasure. The Polish peasant has a far warmer affection for Russia, than the Spanish peasant has for England. It would no doubt be a calamity for Russia to subjugate western Europe, but we defy her to govern it worse than England has governed Ireland and India. The predominance of Russia would no doubt injure the Catholic cause, but not more than England has injured it in Spain and Portugal, and is now injuring it in Sardinia, Sicily, and the whole Italian peninsula; or than France herself has injured it by her league with the Turks against Austria and Spain, and with the Protestants against Catholic Germany, by her Gallicanism, Jansenism, and infidel philosophy, her immoral literature, her Jacobinical revolutions, and by her Italian and German wars and conquests under the republic and the empire. But be all this as it may, Russia is better than Turkey, the Greek schism is far preferable to Mahometanism, and if the western states cannot preserve the balance of power without uniting to uphold the standard of the Arabian impostor, they ought not to preserve it at all. Russia certainly dogs not favor, and never has favored radicalism or socialism, the two worst enemies the church has to defend herself against, and that is much.

         We are far from believing Russia wishes to extend her empire to Constantinople, and we do not believe her present movement was begun with any view to conquest. She wishes, no doubt, to protect, to gain to her cause, if you will, the Christian subjects of the porte, and to supplant the influence of France and England at the court of Constantinople, to prevent them from making the porte a bad neighbor, and the revolutionists from making her their rendezvous, and the point d'appui of their operations against Europe. There is nothing unreasonable in this. The czar is only acting on the defensive, only taking a step which France and England render necessary, to protect himself and his allies. If they choose to make use of Turkey against him and his allies, as they avowedly do, what more natural than that he should seek to thwart them? If he cannot do it otherwise than by taking possession of Turkey, whom have they to blame but themselves? They cannot expect to use Turkey against him, with his acquiescence, and they must compel her to keep the peace, and suppress their demagogic, if they wish him to refrain from advancing to the South. At present they give him a good excuse for what he is doing, and place themselves in a wrong and in a most foolish position. If Russia does not profit by it at their expense, they may consider themselves happy.