The laws of Austria regarding expatriation seem to have been sufficient to prevent any questions arising with regard to the conscription of naturalized Americans in the Austrian army; at all events no correspondence on the subject is published in the United States Congress papers.
There are, however, two cases in which the rights of subjects of the Austrian Empire naturalized in the United States have been discussed.
The first and best known is that of Martin Koszta.1
Martin Koszta, a Hungarian, was one of the refugees of 1848–’49. He went to Turkey, where fie was arrested and imprisoned at Kutahieh, but released on condition of leaving the country.
He came to the United States, and made the usual declaration of intention to become naturalized.
He then returned to Turkey in 1853, and went to Smyrna, on commercial business, where he obtained from the United States consul a teskereh, (or traveling pass,) stating that he was entitled to American protection.
On the 21st of June, 1853, Kozta was seized by some persons in the pay of the Austrian consulate, and taken out into the harbor in a boat; they then threw him into the sea, and he was picked up by a boat from the Austrian man-of-war Hussar.
The United States consul went on board to remonstrate, but the captain of the Hussar persisted in retaining Koszta.
On being informed of the circumstances the United States chargé d’affaires at Constantinople requested the captain of the United States ship of war Saint Louis to demand Koszta’s release, and, if necessary, to have recourse to force.2
The Saint Louis then went down to Smyrna, and the captain, in pursuance of his instructions, stated to the commander of the Hussar that unless Koszta was at once delivered to him he should take him by force of arms.
As such a conflict would have led to the destruction of the greater part of the shipping, and probably of the town, the French consul offered his mediation, and Koszta [Page 1299] was then given over to his care to be kept until the decision of the respective Governments was ascertained.
The matter was eventually compromised by an arrangement being come to between the Austrian internuncio and the United States minister at Constantinople that Koszta should be shipped back to the United States, the Austrians reserving the right to proceed against him in case he returned to Turkey.
“Le gouvernement impérial se réserve cependant de procéder contre cet individu conformément à ses droits, dès qu’il serait surpris une autre fois sur le territoire ottoman.”1
It is to be remarked that the Turkish government had protested against the invasion of their territorial jurisdiction by the Austrian consul and captain.2
On the 29th of August, 1853, the Austrian chargé d’affaires at Washington3 presented a formal remonstrance to the United States Government, protesting against the claim of the United States to afford protection to Koszta, and urging them to disavow the conduct of their agents, and to grant reparation for the insult offered the Austrian flag.
Mr. Marcy replied on the 26th of September, 1853.4
In this note, which is of great length, Mr. Marcy gives a full account of the affair, and maintains the propriety of the course adopted by the United States minister, consul and captain, pointing out that, independently of the question whether Koszta was or was not entitled to American protection, the Austrians could have no right to Seize him upon Turkish soil.
The following are some of the principal passages in which Mr. Marcy deals with the right of Koszta to United States protection:5
“There is great diversity and much confusion of opinion as to the nature and obligations of allegiance. By some it is held to be an indestructible political tie, and though resulting from the mere accident of birth, yet forever binding the subject to the sovereign; by others it is considered a political connection in the nature of a civil contract, indissoluble by mutual consent, but not so at the option of either party. The sounder and more prevalent doctrine, however, is, that the citizen or subject, having faithfully performed the past and present duties resulting from this relation to the sovereign power, may at any time release himself from the obligation of allegiance, freely quit the land of his birth and adoption, seek through all countries for a home, or select anywhere that which offers him the fairest prospect of happiness for himself and his posterity.* * * * The proposition that Koszta at Smyrna was not an Austrian subject can be sustained on another ground. By a decree of the Emperor of Austria of the 24th of March, 1882, Austrian subjects leaving the dominions of the Emperor 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 rights at home.
“Mr. Hulsemann,6 as the undersigned believes, falls into a great error, an error fatal to some of his most important conclusions, by assuming that a nation can properly extend its protection only to native-born or naturalized citizens. This is not the doctrine of international law, nor is the practice of nations circumscribed within such harrow limits. This law does not, as has been before remarked, complicate questions of this nature by respect for municipal codes. In relation to this subject it has clear and distinct rules of its own. It gives the national character of the country, not only to native-born and naturalized citizens, but to all residents in it who are there with, or even without, an intention to become citizens, provided they have a domicile therein. Foreigners may, and often do, acquire a domicile in a country, even though they have entered it with the avowed intention not to become naturalized citizens, but to return to their native land at some remote and uncertain period, and whenever they acquire a domicile, international law at once impresses upon them the national character of the country of that domicile. It is a maxim of international law that domicile confers a national character; it does not allow any one who has a domicile to decline the national character thus conferred; it forces it upon him often very much against his will, and to his great detriment. International law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen. It concedes to every country the right to protect any and all who may be clothed with its nationality.” Mr. Marcy then quotes several authorities to show what constitutes domicile:7
“As the national character, according to the law of nations, depends upon the domicile, it remains as long as the domicile is retained, and is changed with it. Koszta was therefore vested with the nationality of an American citizen at Smyrna, if he, in con templation of law, had a domicile in the United States.” * * “There may be a reluctance in some quarters to adopt the views herein presented relative to the doctrine of domicile and consequent nationality, lest the practical assertion of it might in some [Page 1300] instances give a right of protection to those who do not deserve it. Fears are entertained that this doctrine oilers a facility for acquiring a national character which will lead to alarming abuses; that under the shadow of it political agitators, intent upon disturbing the repose of their own or other countries, might come to the United States with a view to acquire a claim to their protection, and then to return to their former scenes of action, to carry on, under a changed national character, their ulterior designs with greater security and better success. This apprehension is believed to be wholly unfounded. The first distinct act done by them toward the accomplishment of these designs would disclose their fraudulent purpose in coming to and seeking a domicile in this country. Such a development would effectually disprove the fact that they acquired a domicile here, and with it our nationality.”1
This case further elucidates and explains the doctrine of domicile advocated by the United States in the affair of Martin Koszta.
Tousig, a subject of Austria, had acquired a domicile in the United States, but was not naturalized, and voluntarily returned to Austria with a passport from the American Department of State. He was arrested on charge of offences committed before leaving Austria. He appealed to the United States minister for protection, who laid the case before the State Department. Mr. Marcy replied on the 10th of January, 1854:2
“I have carefully examined your dispatches 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 States—there 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 have been 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 been once subject to the municipal laws of Austria, and while under her jurisdiction violated those 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.”
- “Hertslet’s State Papers,” vol. xliv, p. 925–1042. Dana’s edition of “Wheaton,” note, p. 146.↩
- “State Papers,” vol. xliv, p. 935.↩
- “State Papers,” vol. xliv, p. 1015.↩
- Ibid., p. 971.↩
- Ibid., p. 972.↩
- Ibid., p 984.↩
- Ibid., p 987.↩
- Ibid., vol. xliv, p. 996.↩
- Ibid., vol. xliv, p. 998.↩
- “State Papers,” vol. xliv, p. 1015.↩
- Lawrence’s Appendix to “Wheaton,” ed. 1863, p. 929. Cong. Doc., 33d Congress, 1st sess. H. R. Ex. Doc. No. 41.↩