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the end of the rebellion he escaped to Turkey, whence he came to the United States. He remained in this country about two years, during which time he made the statutory declaration of intention to become an American citizen. He then returned to Turkey on business. He obtained from the United States consul at Smyrna a traveling pass, stating that he was entitled to American protection. While at Smyrna he was arrested by Austrian authorities and put on board an Austrian war vessel for conveyance to Trieste. He managed to communicate with the captain of an American war vessel which was lying in the same port. This officer demanded the release of Koszta. The Austrian commander refused. Thereupon the American officer trained his guns upon the Austrian vessel, and declared that if an attempt was made to leave the port with Koszta on board he would blow the vessel to pieces. As a conflict between the two ships would have been attended with great danger to the shipping in the port and to the town, the matter was temporarily settled by the delivery of the prisoner to the French consul, to be kept until the governments concerned should have an opportunity of arriving at a decision. The Austrian chargé d'affaires at Washington, Chevalier Hulsemann, presented a formal remonstrance to the United States Government, protesting against the claim of the United States of the right to afford protection to Koszta, and calling on them to disavow the conduct of their agents, and to grant reparation for the insult offered to the Austrian flag. Secretary Marcy replied, contending that, although Koszta had not yet been naturalized, he was at the time he was seized and imprisoned at Smyrna clothed with American nationality, and that in virtue thereof the Government of the United States was authorized to extend to him its protection at home and abroad. Mr. Marcy maintained that national character, according to the law of nations, depended upon domicil, and that, as Koszta had a domicil in the United States, he was vested with American nationality. The matter was finally compromised by an arrangement between the American and Austrian legations at Constantinople, that Koszta should be shipped off to the United States, the Austrian government reserving the right to proceed against him should he be again found in Ottoman territory.
The position taken by Mr. Marcy, that mere domicil in the United States confers citizenship and the right to protection in another country, is held by such eminent writers on international law as Hall and Cockburn, to be untenable. The former (Hall, International Law, 5th ed., 243, 244) says: “Domicil no doubt imparts national character for certain purposes; but those purposes, so far as they have to do with public international law, are connected with the rules of war alone, and Mr. Marcy's contention was wholly destitute of legal foundation.” And in a note on the same page the author further says that Mr. Marcy's doctrine was strangely inconsistent with the law of the United States at the period when he wrote, as at that time persons of foreign nationality, who had declared their intention of becoming citizens, were incapable of receiving United States passports, and consequently could not have been regarded as subjects. He refers to the passport given Koszta by the United States consul at Smyrna in contravention of the laws of the United States as obviously a mere piece of waste paper. Cockburn says: “The reasoning of Mr. Marcy, which is remarkable for its boldness in carrying the doctrine of acquired nationality further than it ever has been carried, and in which the effect of domicil in respect of civil consequences is confounded with its effect as to political consequences, is altogether inadmissible. Domicil, and even residence, in a particular country, entitles the party to the protection of that country only
so long as he is within it; and the effect of such a rule as that contended for by Mr. Marcy would be to introduce the most lamentable confusion into this branch of the public law. Naturalization is generally, and should be always, accompanied by some authentic act, which can be referred to, and which speaks authoritatively. But if mere domicil were to give the rights of citizenship, every case would necessitate a judicial inquiry upon a matter which every lawyer knows to be, depending, as it does, on intention, a question often most difficult of solution.” Nationality, 122. Mr. Cockburn's opinion of the Koszta case is given in a brief note at the bottom of the page just given, as follows: “Both parties were equally in the wrong. The Austrians had no pretense of right for seizing Koszta on Turkish territory. On the other hand, the American authorities had no right to claim Koszta as an American subject, as he had not become naturalized. The party really entitled to complain was the Ottoman government, which refused the application of the Austrians for leave to arrest Koszta, and protested against the outrage offered to their authority, but whose protest does not appear to have been heeded.”
Just prior to, and during the Cuban insurrection of 1869, many Cubans declared their intention to become citizens of the United States, and after doing so returned to Cuba. The United States consul at Trinidad interfered in behalf of several of these persons, claiming that they were American citizens, and asked the Department to approve his action. This the Department declined to do, in the following instruction, dated May 12, 1869, in the course of which Mr. Marcy's note in the Koszta case was explained and qualified: “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 took special 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 despatch 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. . . To extend this principle beyond the careful limitation put upon it by Secretary Marcy would be dangerous to the peace of the country. It has been repeatedly decided by this Department that the declaration of intention to become a citizen does not, in the absence of treaty stipulations, so clothe the individual with the nationality of this country as to enable him to return to his native land without being necessarily subject to all the laws thereof. In the present unhappy state of things in Cuba the Secretary of State can see no reason for departing from so well-established and so wise a rule.
He earnestly exhorts you, and all other consuls of the United States, to spare no effort to protect the lives, the property, and the rights of American citizens in this emergency, and he will see with satisfaction any unofficial efforts you may make to shield the persons of those who have declared their intention to become citizens from the barbarities of the Spanish Volunteers, but he desires me to direct you hereafter in your official action to observe the rule laid down for your guidance in this instruction.” Mr. Davis, Asst. Sec'y to Mr. Fox, U. S. Consul Trinidad, S. Ex. Doc. 108, 41st Cong., 2d Session, 202, 203.
Secretary Olney in an instruction to the United States minister in China, January 13, 1897, said: “The somewhat extreme position taken by Mr. Marcy in the Koszta case, that the declarant is followed, during sojourn in a third country, by the protection of this government, has since been necessarily regarded as applying particularly to the peculiar circumstances in which it originated, and to relate only to the protection of such a declarant in a third country against arbitrary seizure by the government of the country of his origin.
It is established by the practical interpretation and application of domestic statutes, and by various treaties of naturalization concluded with foreign states, that a mere declaration of intention to become a citizen can not clothe the declarant with any of the international rights of citizenship.” Mr. Olney to Mr. Denby, MSS. Dip. Inst. to China, For. Rel. 1896, 92. See, also, Secretary Hay to Mr. McKinney, March 20, 1899; and 3 Moore's Int. Law Digest, 336 et seq.
h. Declaration of Intention and Residence.
(A.) In General. Declaration of intention and residence, however long continued, do not operate to confer citizenship upon an alien.
In Lanz v. Randall, 4 Dill. 425, where the declarant had resided in the United States fifteen years after making his declaration, it was decided that naturalization had not been effected.
And in Johnson v. United States, 29 Court of Claims, 1, where the applicant came to the United States at the age of thirteen years and made the declaration of intention after arriving at majority, it was held, when he had