The New York Herald Newspaper, September 30, 1853, Page 1

————— WHOLE NO. 17580. IMPOR CANT STATE DOCUMEN THE SEIZURE CF KCSZTA AT SMYRNA, Reply of the President to the Austrian Government. The First Diplomatic Note from | “the New Administration. OUR NEW FOREIGN POLICY. The Rights of an Embryo American Citizen. Onr Consol at Constantinople and Captain Ingraham Fully Sustained, fe., kes, ho. ‘ | Secretary Marcy te Chevalier Hulscmann. Deraurment or Srarte, Wasaingcun, Sept. 26, 1853. { The President bas carefully considered the note of Mr. Hulsemann. [which will be published in the | Hggatp to-morrow,) Chargé @’ Affuires of his Ma- festy tbe Emperor of Austria, of the 29th ultimo, addressed to this Department, and the other docu- ents relative to the much-regretted occurrences at Smyrna in June and July fast, with a view to ascer- tain the nature of the complaints thereia preferred Sgainst the American officers engaged in that affair, ‘and for the purpore of giving such satisfaction as Austria might be extitied to receive in case ne should ind that these offivers had not duly respected her rights. Though differing very much from the views present- ed-by Mr. Hulsemann oa behulf of his government, $he Presideut still tn tulges the hope tha; the expo- ition of the principal reasons vn which his own con Clusions are founded will induce his Majesty's gov- ernment to look at the transaction in a different ight trom that in which it is presented by that gov- ‘€rnmeut. It is the duty of the undersigned to present these wweasons to Mr. Hulsemaun, and he will faii in bis in- ‘tention if in pertorming this duty, he does not ‘evince a friendly +pirit, and avoid, so far as it can be one without impairing the full strength of the case, the introduction of topics to which either Mr. Hulse- (Manr or his goverpment ean take exception. “To bring out covspicuously the questions to be upon, it seems to the undersigned that the dactarhould be more faily and clearly stated thao they-are in Mr. Hulsemann’s note. Martin Koreta, by birth a Aungarian, and of Course an Austrian subject at that time, tovk an open and active part in the political movement of 1343- 449, designed to detach Hungary from the dominion of the Emperor of Austria. At the close of that disastrous revolutionary movement, Koszta, with many others engaged in the same cause, fled from fhe Austrian duminivns, and took refuge in Turkey. “The extradition of these fugitives, Koszta among them, wes demanded and pressed with great vigo “by Austria, but firmly resisted by the Turkish gov ernment, They were, however, confined at {Kata hia, but atlength released, with the understanding or by express agreement of Austria, that they should leave Torkey aud go into foreign parts. Most of them, it is believed, before they obtained their release, in- Gicuted the United States asthe country of their exile. Ic is alleged that Koezta left Turkey in com- speny with Koseuth—this is believed to be a mistake; and that be engaged never to returu— this is regard ed as doubtful. To this sentence of banishment— for such is the irue character of their expulsion from Torkey— Austria gave ber consent ; in truth, it was the result of her efforts to procure their extradition, « @nd was accepted by ber a5 a substitute for it. She «bad agents or commissioners a; Kutahia to attend to their embarks: wn, and to her the legal consequences ‘of this act wre the came asif it had been done di- rectiy by herself, and uot by the agency of the «Ottoman Porte. Korgta came to the United States and selected this country tor his future home. On the 31st of July, 1852, he made a declaration, + ander cath, before a proper tribunal, of his inten- tion to become a citizen of the United States, and re «Bounce all allegiance to any other Stute or sovereign. After remaining here one year and eleven montas, jhe returned on account, as is alleged, of private ¢ business ef a temporary character, tv Turkey in an American vesel, cluimed the rights of a naturalized American citizen, aud offered to place himself uuder “the protection of the United States Consul at ~Bmyrea. The consul at first hesitated to recognize ! nd receive him as such ; but afterwards, and some- Gime before bis seizure, he and the American Charge | @’ affaires ad inter:m at Constantinople, did extend | protection to }im, and furnished him with *Dezkerch—e kind of passport or letter of safe con- + Guct, usually given by foreign consuls in Turkey to | persons to whom they extend protection, as oy Torkish laws they have a rignt to do. It is im- _ portant to observe that there is no exception takou +o bis conduct atter his return to Turkey, and that Austria bas not alleged that he was there for Qny political object, or for any other purpose than «the transaction of private business. While waiting ea is alleged, for an opportunity to return tothe ~ United States, he was seized by a band of lawless -mcn—freely, perbaps harshly, characterized in the Gespatobes as “ ruttians,” “ Greek hirclings,”” “ rob- bers”—who had not, nor did they pretend to have, @ny color of authority emanating from Turkey or Austria, treated with violence and cruelty, and thrown into the sea. Immediately therea/ter he was @aken up by a boat's crew lying in wait for him, be- Jonging to the Austrian brig of war Hussar, firc @d on board of that vessel, and there cunfined in ~drons. It ia now avowed, as it was then suspected Ghat these desperadoes were instigated to this out pwage by the Austrian Consul-General at Smyrna; Dut it ts net pretended that be acted under the civil -eathority of Turkey, but, on the contrary, it is ad- Muitted thas, on apptication tothe Turkish Governor @t Swyrns, that magistrate refused to grant tue Aus -@rian Consul any authority to arrest Koezta. ‘Tho Consul of the United States at Smyrna, as soon as be heard of the wizare of Koszta, and the ‘Charge d’ Affaires of the United States, ad interim, )@t Constantinople, aiterwards interveded with the ) Turkish authorities, with the Austrian Consul-Ge- hecral at Smyrpa, and the commander of the Aus- brig of war, for his release, on the ground of American nationatity. To support this claim o@tta's original certificate of having made, under }oath, im @ court in New York, a declaration of iu- ution to become an American sitizen, was pro- at Smyrna, and an imperfect copy of it aa placed in the hands of the imperial Austrian ternuacio at Covatantinople, The application to 60 officers at Smyrne for his lideration, as well as of Mr. Brown, our Charge d’Affaires, to Baron oBruck, the Austrian Minister at Constantinople, ‘as truitless, and it became notorious at Smyrna oy there was a seitied design on the part of e Austeian officiala to convey him clandestiaoly 0 Trieste, a city withia the dominion of the mperor of Austria, Opportanely, the United f°? Ploop Qf War, the Ae Lows, wader thy ! command of Captaia Ingrebam, arrived in the harbor of Sinyrna before this design was excoated The commander of the St. Loa‘s, from th- represen- tetion of the case made to him, felt it to be his duty, as it unquestionably was, te inquire into the validity of Korzta’s claim to American protection. He pro- ceeded with deliberation and prudence; and dix covered, what he considered, just grounds for iuqul ring ict Koszta's claim to be discharged on accoaat of his American nationality. Daring the pendency of this inquiry he received notice of the desigu to take Koezts clandestisely, bef re the question at issue was settled, isto the dominions of the Emperor of Austria. As there was other evidenceof bad faith besides the discovered design of evading the iaquiry, Captain Ingraham demanded his release, and inti mated that he should resort to force if the demand was not complied with by a certain hour, Fur tunately, however, no force was used, An arrange” ment was made, by which the prisoner was delivered to the custody of the French Consul-Generat, to be kept by him until the United States and Austria should agree a+ to the manner of disposing of him. This full statement of the facts is deemed impor tant, as it will correct some errors and aid ia pre senting with more distincwness the questions te be discussed, The undersigned wil! now proceed to present the views of the President upon this transaction, an ibis reply to these several demands. His imperial Majesty demands that the govern. | ment of the United States shall direct Koszta to be delivered to him; thst it shall disavow the conduct of the American agents in this affair, oall them to a severe account, and tender satis(action proportiouste to the outrage. In order to arrive at just conclusions, it is necess1- ry to ascertain aud clearly define Koszta’s political relation with Austria and with the United States when he was seized at Smyrna. This is the first point which naturally presents itself for considera ticn, and perhaps the most important one ia its bear ir gs upon the merits of the case. ‘There is great diversity aud much confasion of opinion as to the nature and obligations of allegiance. By some it is held to be an indestructible political tie, and though re.ulting fromthe mere accideut of birth, yet forever binding the subject to the sove- reign; by others it is considered @ political cou- nection in the nature of a civil ¢ontract, dissoluble by mutual consent, but not so at the option of eituer party. The sounder and more prevalent dootrine, however, is, that the citizen or subject, having faith- fully performed the past and present duties resulting from his relation to the sovereign power, may at avy time release himself from the obligation of alle Bierce, Beely quit the land of bis birth or adoption, seek through all countries @ home, and select any- where that which Offers bim the fairest prospect of happiness for bimselt and his posterity. Whea the sovereign power, wheresoever it may be placed, dees not answer the euds for which it is bestuwed— when it is not exerted fur the general weliare of the people, or bas become oppressive to individuale—this Tighs to withdraw rests on as firm a@ basis, and is similar in pricciple to the right which legitimatizes resistance to tyranny. ‘The conflicting laws on the subject of allegiance are of a municipal ebaracter, and have no controlling operation beyond the territorial mits of the coau- tries enacting them. All uncertaiuty as well 4s con- fusion ou this subject is avoided by giving due con- sideration to the fact that the parties to the question now under consideration are two ludepeudent na- tions, and that neither has the right to appeal to its own municipal la vs for the rales to sottle the matter in dispute which occurred within the jurisdiction of a third independent power. Neither Austrian decrees nor ‘American laws can be properly ivvoked for aid or direction in this case; but international law furnishes the rules for « correct decision, acd by the light from this source shed upon the transaction at Smyroa are its trae features tv be discerned. Korzta being beyond the jurisdiction of Austria, her laws were entirely inoperative in his case, unless the Sultan of Turkey has consented to give them vi- gor withon his Gomiuious by treaty stipulations, The ‘aw of nations has rules of its own on the subject of allegiance, and disregards generally all restrictivas imwosed upon it by municipal codes. _ : This is rendered most evident by the proceedin; of independent States in relation to extradition. No Stare can demand from any other, as a matter of right, the surrender of a native-born or naturalized citizen or sobject, an emigrant, or even a fugitive from justice, unless the demand is authorized by ex- press treaty stipniation. International law allo #s no such claim, though comity may sometimes yield what right withholds. To surrender political offe: ders, (aud in this class Austria places Kossta,) is not a duty; but, on the coutrary, compliance with such a Cemand would be considered @ dishonorable subser- vieucy toaforeign power,and an act meriting the reprobation of mankind. As rendering weed- less all further argument on this puint, the undersigued will recall to Mr. Hulse- mann’s recollection what took place in 1849 aad 1850, in relation to the reclamation of Polish reta- gees in Turkey by Russia, and of Hungarian refugees, (of whom Koszta was oue,) by Austria. This demsnd was made in concert, as it were, by two powerful rovereigus, while their triumphant ar- mies, whi:h had just put aa end to the revolutionary movements in Hungary, steod upon the borders of Turkey, VN kee to erase her name from the list of nations. ¢ might well appreheud for herself, as the nations of Western Europe apprehended for her, that a refusal in her critical condition would put ia jeopardy her existence as an independent power; but the did refuse, and the civilized world justified aud commended the act. Both Austria and Kussis placed their respective demands on higher grounds than a right of extradition under the law of nations; they attempted to strengthen their claim by founding it upon the obligations of existing treaties—the same, undoubtedly, that are now oped upon the coasidera- tion of the Cuited States. Russia acd Austria, how- ever, both submitted to the refusa! sumed to impute to Uurkey the act of refusal ass breach of her duty or a violation of their rights. To chow that the very same claims to rights now set op in this case were overruled and repudiated in 1549 and 1550,the un will refer -to the cu- temporaneous views of eminent statesmen in regard to the conduct of the Sultsa in refusing to sarren- der, on the demand of Austria and Russia, the Hun gurlon and Polish refugees who were claimed by these pres as revels and traitors. Sir Stratford Canuing, the British ambassador at Constantinople, entirely approved of the Sultan's eourse on that occasion, indeed, he advised it. [ua letter to bis government, dated the 3d of September, 1849, he says:—-On grounds of humanity, not au- mixed with considerations as atfeoting the Porte’s character and foture policy, I have not hesitated to advice a deciced resistance to the demand of extra- dition.” From another letter of this ambassador, dated the 17th of December, commenting on aud commencing the courageous firmueas of the daltan in refusing the demand of those powerfal emperors for the surrender of these fugitives, om the same pre- tence as now set Bp by one of them to justify the seizure of Kosta, this extract is taken :— Allow mo to add my lord, that im proportion asl ed mit the coursgeous drmnese with whlca the dultan acd his government have ceteraiced to mate this etend ia the couse of bumont'y ard of the rights of Ronor asd Cignity, against a demand slike o°j-ctuscadiein au detence oud iu form, | ‘vol o deepmning acxiery for the revuit of ix replstavos, acd for the degree of aupport which her aty’# OverDL Sut Bud that of Frauee may find them Uberty to sfford, not only tm the drot tostense, bat sn still grave: ciroum-tacows, should the profent par tinlropture ubfortunately assume @ more soiious and mel ig Character, In these views the French minister resident at Constantinople fully concurred, and ao did the Srit- ish aud French governments; and both were pre- pared to espouse the cause of Curkey it ner hu. mane and bouorable course in refasing these uuwar- rentable demands had provoked the reseatment aad brought down upon her the hostilities of these mighty putentates. The eae of otaer distiaguishet eel Bete of the decision of the Emperur of Corkey ia refusing to surrender the Polish and Hun- Karin refugees, both on the ground of bum snity and nght, have fallen under the notice of the under slated, but he has forborne to quote them on account of thy unworthy motive ascribed thervia to the »owers making the demand, aud the harsa epithets vee istdscros is Looker nena ies 4 an inciden: of great significance, am rin, authoritatively upon some of the must importan questions now rated, that the case of Kousta, (tor i A ove ih ve Hangarian then demand- was fully discussed in 1849, not onl the parties, bat throughout Burope, ani decided aguiust the right of Austeia to require hia extradition, either Wuces the lar of vations OF calming teonty aNpwlA tion. This decision deeply interested, not only riers and stateamen, but the great body o' the peo- ple of every couutry. They investigared is nerita, admitied it justice, and commended tre Grmacss and bumanity of the Sultan for his course. It is @ be regretted that this cluim tor tae sarrem- der of Ko-zta and bis compauions, so fully cousider- ed then, aud 80 signally overruled, should be aga‘n revived by Austria under circumstances whic: make the United States a rela tant party ia the contro- ver-y, Tbe slaim has been reoudisted by the gene- ra) judgment ot Europe, and this goverument is un- abe to discover any sufficient reason for disseatng trom that ceci-ton. Austris avpears to have been aware that her right to 6 'ze Koszta could not be sustained by interne tionat law, and she has atten sted to derive it from certain treaties, or “ ancient capitulatiuns by treaty aud wage.” The very slight and inexvlicis maaner in whicn this authority is advected w in Mr. Hutse- mavu's pote apparendy indicstes, if oot a waxt of nfideuce in it, at least @ desire uof to have it soru- tivized. It there really was such ao au hority, aud 15 was ofsuch wa extraordinary oneracter us it is ag sumed to be, it would have constituted, as Anstris must have clearly seep, the maiu strength of her case, and ehe would not have referred to it in such @ manner as to leave the very existence of it opea to doubt or quest on, Tae paragraph referring to it is the following: — As there con be no dout therefore, coneoroing the Question of vationslty, the Consu Gecersl of the Baye cor my rna was without doubt per‘ec'ly justided when lo virtue of those treaties which subject Aastrian aud- ject in Turkey to consular jurisdiction, he setzed the Vereen of Kovate within the pale of his ja iedtotd: If there be such treaties conferring such a power with such ext:sordinury means of enforcing it, strange indeed it is that more promineace is not te to the factin Mr. Hulsemann’s communication. Vhy ace the dutes of these treaties withheld? What is sti!) more important, why is not the language con- veyiog this sutvorityquoted? The undersigned is | o vetruined, for reasons he will briefly assiyn to question the sccura’y of the iaterpretatin which derives the right claimed in the above paragraph from any existing treaty between Austria and the Ottoman Porte. The Austriun internuncio at Constantinople, ine conference with Mr. Marsh, the American Minister resident, spoke of such aright as derived frow *‘ao- ecient capitulations by treaty and usage.” It is aot shown or alleged that new treaty stivulations tince 1849 bave been entered iuto by Turkey aud Austria. The “ancient capitulations” were relied on to support the demand in that yea for the surreuder of the Hungarian refugees; they were scrutinized, and vo such authority as is now claimed was found in them. The French avd English ministers at Constantiao- le, who udvised ano sustained the Sultan ia cesist- ing the ¢ewand of Austria for their extradition, would not bave given such advice if they could bave found in existing treaties any authority for that de- wand, or avy obligation on the part of the Sultan to eid toit. Lord Palmerston, thea her Britsanio ajesty’s priucipal Secretary of State for Fureiga Afiurs, carefully exemined these treaties, and ex: essed bir conclusions theron ia a letterto Sir crattord Canning, dated 24th September, 1549. ta this Jetter, which sontaived an extract from one of there treaties—that of Belgrade—uane referred to tre claims of Austria founded on them, for the surren- der of the-e refugees, he says :— The utmost that could be demanded would be that they, (the ce fugees,) sbou'd not he allowed to reside permanently iu the Turkish empire ” Coming down to a late: period—to the very trans- action at Smyrna—abundant reasons are fouud for denyivg thas Turkey was then under any treaty onli gation to deliver Koszta to Austria, or that her Gon- sul General hud authority toseze him. 01 this sub- ject it is allowable to resort to the declaratious of the public men of the Porte.as evidence in regard to an issue of this kind. ‘Their explicit denial may be fair- ly considered as equivalent to Austria's uflirmation without proof, where proof, if it existed, could be so easily adduced. In a despatch to this government of the 4th of August, 1853, Mr. Marsh, the American Miaister resident at Constantinople, says:— 1 have bad several covversaticrs on thia subject with the Mipister of Foreiga Affaire and #ith Ali Pacua Gov @rner of Swyrns, at te time the ailair wok piace. These Gistingui>bed persons are very far from exprersing any Oizeatisfaction with the ceuree pursued by us They eustain tbe view the legation has taken of the legal char- seter of the question, end Ali Pacha 1a‘orm, me shat few )¢ora orcs the Auw1ian goverament refored tp eur rences to the Porte Tn kish rebels who vad find ia'o Aus tria on the very ground now taken by the Porte, nems ly, that the trest es did not provide for the ex:radinon of pol.tical cflenders. Mr. Brown, the Charge d’Affaires, ad interim, 0° the United States at Constantinople, writes that in av interview with Chehil Effendi, alsoa furkish offi- cer of high rank aud great experience, in which tae affair as Smyrna was discussed, he observed that “the Austriun government does not poasess tue power by treaty to arrest apy one on Ottoman soll for litical fences.” There is now, however, some:hi more decisive from Turkey thaa the opinion of ber public men, in opposition to this treaty-clauim of Aus- triae The government of the Porte has pronounced @ judgment in relation to the seizure of Koszta which Au-tra berrell is bound to respect. It has protested @gainst the conduct of the Austrian agents in that effvir as unlawful, and a violation of its sovereiguty; but not ove word of complaint, not a murmur of dis- satisfaction, from Turkey, against tne conduct of the functiovaries of the United states at Saiyrna, has yet rescbed this government. Tais is certa‘nly au anom- alous case: Austria arraigns the United sSvates for violating the rights of Turkey in the Koszta affai-; Turkey, the oflended party, exonorates the United States, und protests against Austria, our accuser, for the very same offence. ‘These considerations have led the undersigned, as he believes they will lead all others who duly reflect on them to the confident conclusion that there exist no treaties between Austria and Turkey which could justify or io auy way countenance the seizure or {m- pricovment of Koszta by the Austrian functionaries, But if Austria really has such authority by trea ties as she now claims, it confessedly extends only to “ Austrian subjects.” It could not, therefore, be applied to Koszta, unless be was such a sabject at the tine be was ceized. If the question of his va- tionslity is to be settled by international law, the Oly code which furnishes the ra'es by which this ene is to be determined, there is no good reason for aijudging bim to have been, when seized at Smyrva, an Austrian subject. But settle this ques- tion, as Austria would have it settled, by an appeal to her own civil code, the result will be the same. By the covsent and procurement of the Emperor of Austria Kostza bad been sent into perpetual banishment. The Emperor was a party to the ex- wision of the Hungenan refagees from Turkey. the sovereign by such an act deprives nis subjects to whom it 18 spplied of all their rights under his overument. He places them. where he cannot, if would, afford them protection. By such an act be releases the subjects thus banished trom the bond of allegiance. Avy other result would make the po- litical convection between the subject aud the sove- reign # state of LPL hoe vussalage, ia which all the duties and no rights would be »n one side, aud all the rights and no duties would be on the other. Kostza must be regarded as having been banished by Austris, for he was oue of the Hungarian refa- fees whom she procured to be expelled from Turkey 1861. They were relcased from ‘confinement at Kutabia on covdition of submitting to perpetual ban- ishment, and she had two persons present at their departure “who claimed and obtained there an ac- tive sbare in the arrangement.” Koegta could never borthenlegy be frightfully,demanded {as an Austrian bubject. be proposition that Koszta at Smyrna was notan “ Aust: subject,” can be sustained on another ground. By a decree of the Emperor of Avstria of the 24th of Murch, 1832, Austrian subjects leaving the dominions of the Emperor witnoat permis-ion of the magistrate and a releare of Aus tian citizenship, and with an intention never to re- turn, become “‘nulawfully emigrants,” and lose all their civil and political’ rights at home.—(#ucy. Aer. Tit. Emigration, 2 Kent's Com . 50, 61.) Korgta bad left Austria without in, and with the obvious and uvowed intention never to re- turn. He was, therefore, within tte strict meaniug of the imperial deoree “an unlawfal emigrant.” He bad incurred and Ben Led per 9 of that offeace by the loss of all his civil political rights. if he had property it had escheated, and he us reduced to # state worse than absolute alienage; for aliens have, by right, the benefit of the civi laws for pro tection, in whatever country they may be. Stripped tnis imperial decree of civil aud political rights orzta hud, in Austria, no redress for personal wroogs, and abroaé he had no claim to protection from tbe government that would still hold him ay « tutject. He was, in regurd to Austria, an outlaw. What right can s sovereign have to tne allegiance of@ person reduced by bim to such a miserable condition ? It seems to have been the very objeot uf the Austrian decree to dissoive the ver jos politi cal connection between the “unlawful emixrant” and the Emperor. Ip Kouzta’s case it was d‘saolved Some importance seems to be attuched ty Koapta’s own opinion of his citizenship. The note of Mr. mann conveys the impression, though it does not contain the ee averment, that he acknow- asubject of the ledged himself to » When closely examined, Austria. The aor Wnt the acknowledgement ia galy ag, MORNING EDITION----FRIDAY, SEPTEMBER 30, 1853. ipference from undisclosed premises, The language of the pote ou subject is be (ollowiag :—*‘ Tne very Oeciaratvon of that refugee on board of the Hasaar, ww the prerence of the Awerica® Consult sad tue commanoer of the 8t Lous, shows that be atiil cou- sidered bimre!t a8 w pubjec of the Emperor.’ Tae ceclorat on referred to in support of this: inference is ot given, but ft 1s undoubtedly the response Koazta ie reported to buce made when interrogated as tu bis being at Ameroan citizen :— 1 uma Manga Nap, avd will live «nd diea Huogarian.” Me. Brown, the Churge @’ Affaires, ad interum, of the United States at Con-tuntineple, who was not at Sinyruw at spy time ouriug the transaction ia retati Korg, etsted, in a letter to Baron de Bruck, cou thing like the foregoing dec‘urati bat C aptaic: Ipgrebam, who was preseot, us Mr. Haleeminn tates, when Koezta was examined, and nxade the eecksrtion imputed to bim, soya, iu writing t Minister Re-icent of the United States,—* 1 wm ustunisbed to see by Mr. Brown's letter that Korgta deo'ared biwself, oa our first interview, a Aovgariev; 1 did vot bear him say so.” [7 ma) well be doubted whether Keazta ever used any suc! language. Should 11, however, be udaitted thothe did mabe that ors similar declaration, it canuod be tuirly understood to imply an acknowledgmevt that be sastrev a sulject of the Emperor of austria. To wpprebend rizbty what be meant by such 4 declaration, it 1s proper to cous der his situstion, bis kuoen sentiments, and his antecedents. In bis wiino HO two thugs could probarly be more distinct fom each other than Austria and AH ingary. Que was: en object of bis aversioa, the otner an onject of tis love. “His affections clustered arouud the vsnd of bis Birth.apd were the more intense because he thought that eountry had been cruetly wronged, and be knew it was uctortanate. In his visions of the fu- sore he saw a baypicr destiny for Huoyary. He saw her standing proadly among the ind+pendeut aa- tions O° the earth, unocr a clemeut goverument ensnating from the will, of the people, catng 18 con-titutional authority to their weliare. Iv the falen condition of Huogury he thought it Base to disown her, and glor ous to clin ber as the land of bis birth. Hu situation whea tis decturation 1» supposed to have beoa made ts alsy to be regardeo in interpreting bis worts. He was in the berds of Austrian agents, loaded with tetters, and warned of bis own coom by the kuo@ledge of the eed fare of sv many of bis uu'ortuna‘e Companions, In this forlorn coudition be could not have iuteaded, ty tre lupguage ascribed to bim, to ackawledge uby upbroseu tie which then bound him to the Em- peror of Austria ‘The ucder-igued is brought, by a fair application of sound principles of Jaw, and oy a careful consid- eration ot toe facts to this imp rtant conclusion — that chose who acted in bebalf of Austria had no right whatever to seize and imprison Martia Kosta, It will be conceded. toat the civil authority of Turkey, during the whole period of the ovcurreuces Smyrna, wes dormant, wnd in no way calied into action. Under these circumstances—Austria with- outany authority, Turkey exercising none-—and the ‘American fonction sries, as Austria asserts, haviog no Yigbt in behalf of teeir goverumeut, to interfere in the »fluir, (* proposition which will be hereafter contested,)—what, then, was the condition of the parties atthe commencement of the outrage, aud through 118 whole progress? They were all, ia th’s view of the cae, without the immedia‘e presence and controlling ‘direction of civil or iaternational jaw, iv regard to she treatment of Koszta. The Greek hbirelings, Koszta their victim, and the Aus trian and Amerivav ugents, were, upon this supposi- tion, all in the sume condition at Smyrna in respect to rigbts aud duties. so fur as regards that transac- tion, as they would bave been in 1t it 20d occurred in their jaerence in some uvappropriated region lying far beyond tho confines of any sovereigu Stute waat- ever; the: were the hege subject of the law of nature, moral agents, bound each aud all alike to ob-erve the pre epts of that l-w; and especially thut which is corfimed by Divine san stion, and enjoms upon all meu every whers, when not acting under legal re- straitte, to do unto others whatsoever they would that others should do unto them; they were bound to dono wrong, and to the extent of thew means to prevent wrovg from being dine; to protect the wenk from being oppressed by the strong, and to relieve the di-tressed. In the case sapposed, Kosuta was feiged without spy rightful authority. He was suffering wrievous wrong—any one that could might relieve him, To do so was a duty im osed under the peculiar circumstances of the cusy by the Jaws of humanity. Captain Ingraham, in doing what be did for the releace of Koszta, would, in this view of the eare, be fally justified upon this principle. Who, in sueb a case, can fair y take-offence? Who havea right to complain? Not the wrongdvers, surely; for they can appeal to no law to justify their conduct. They can derive no suprort from civil authority, for there was none called {nto acton; nor from the law of nature, for that they have violated. To place the justification of the American agents still further beyond controversy, the undersigned will now proceed to show that Kuszta, when he was eeized and imprisoned at Smyrna, had the national character of ax Amencan, aud the government of the Uniteo States nad the right to extend its protec- tion over bim. ‘The genuineness of the certificate which he pro- duced when be claimed protection a3 an American citizen has been que-tioned, in consequence of the imperfect copy given by Mr. Brown to the Austrian interruncio; but that which he produced to the Americen consul at Smyrra, and to Caytain Ingra- ham, to the commander of the Austrian brig Hussar, and to the Austian Consul General, was genuine, A correct copy of it has been sent to this Department, and verified by a comparison with tho vecord of the court in New York, in which Kuszta made his de- claration 1n due form of law. To remove all doubt on this subject, a certified copy of that record is an- hexed to this communication, It is pot contended that this initiatory step in the process of paturalizution invested nim with all the sivil rights of an American citizen; but it is eufiicient for all the purposes of this case to show tha’ he was clothed with an American tation- ality; and in virtue thereof, the government of the Unites States wus authorized to extend to him ite protectiou, at home and abroad. Mr. Hulse- mabn, as the undersigned believes, falls into a grest error—an error fatal to some of his mos’ im- portant conclusions— by verse that a nation can ee its protection o ‘ly to native born or naturalizee citizens. This 8 aot the doctrine of in- tervational law, nor is the practice of nations cir- cumecribed w.thin such narrow limits. This law Goes not, as bas been before reofarked, complicate questions of this nature by respect for municipal codes. In relation to this subject, it has clear and avd distinct rules of its own {t gives the national character of the country not only to native-born and naturslized citizens, but to all residents in it who are there w th, or evea without, an intention to become citizens, provided they have a domicil therein, For eigners may, ard often do, acquire a domicil in a country, even though they have eutered it with the avowed intention nut to become naturalized citizens, but to return to their native lan 1 at some remote and uncertain period; and whevever they acquire a doml- cil. international law et once impresses upon them the rational cheracter of the country of that domi- cil. It isa maxim of intervational law that domicil confers & national character; it does not allow any «ve who has a domicii to decline the naticnai Guar acter thus conferre: aves it fpon him often very Mncd sgainst his will, and to his at detri- ment. International law looks only to the national character in determining what couatry bas the right to protect. If a person gocs from this country abroad, with the nationality of tho United States, this law enjoins upon osher nations to reepect hin, in regard to protection, as an American citizen. It concedes to every country the right to protect any ard all who may be clo'hed with its nationality. ‘These are important pr aot in their earings ap- on the questions presented ic Mr. Holsemann’s note, an1 are too obVious to be contested; but as they are oppored to some of the positions taken by Austria, andersigned deems it respectful in such a case to sustain them by reference to authorities. ‘The ,crition i@ & Clear one, that if @ person goes into « fo:e'gn coun'ry. and engagwe in trade thore, he is, by the law of mations, to be considered a merchent of thatcountry, end a subjeo: for ali civt! puroowes whether Py country be heetile or neutral.” (1 Kent Com, Again, the rame authority says that ft weveral cua- teeter of the country in which they reside.’ (Ibid, 8. tt Korgta ever had a domicil in the United States, he was, in virtue thereof, invested with the vational- ity of this ceuntry, and in this character continued as eng 98 thas domicil was retaiued. There are cares in which it is cifficnit to settle the question of domicil; but that of Korzta is not ove of Wem. ‘Lhe most approved cefinitions of a domiyil are the following :— “A r@ idrece ata particular place, accompanied with posttive oF preemption pr ut cx iimited Une (1 Been dewntly apyear that the inter eke & permeneut Fett ement 1 1He Pipe «f dowtell is uequired by a revideace of @ few rey.” (The Veuus, 6 Crazca. 279,) “Vattel has de fine domioti to be & fixes residevce tofeny place with an intention of alweys staying there Bat this {x not an ao: curate statement. It would be moze correct to say that that pece ia pro.erly the domicil of a person in which his Rebitation is fixed. without any present intention of removing therefrom.” (Storj’s Toh ot Laws, coo 45.) «A perecn Whe removes to a forvign country, sottlon ais, engages in the trade of the country ‘c" nen acts auch avid-eoe:f an lateotioa “r- eaids ther+aste stamp hm » corof the S'ate where be resides aneh, 279.) Apply these principles to the case uader con ilera tion, aud the inevitable result is, shat Ko-ete bad a domieil m the Uvited States. He oame to, and re- sided Sv this country one year aud eleven mouths. He came here with the intention of wakiay tt his fu- ture abode. THis ivtevtion was muweifested lu several ways, bu? most? sigunf autly by his wtema deo'ara- ticn upon oath. There oan be no better eviden se of his design of making the United States his futare home, than such a desheration; and to this kind of evidence of be intention, the indisceassble ele ment of true domicil, civiians have always attached im portance (Phillimore, see. 188.) ba the case of oszte, we beve oil that is required to prove be had a demicil ip the United Stetes—the concurrence of |, am actual resicwnce, with the intention t make this cowntry bis future home. ‘The establi-hment of Lis domicil here invested him with the national character of thir country, aud wiva that obpracter be ncquired-the right to clair. protec tion from tbe United States, and they bud the right pamend it to him a+lomg as that character. cou- pued. Tee next question is; was Kosuta clothed with that character when be vas kidvauped in the streets of Smyrna, and imprisoved on board of the Aastrian brig of wer Hussur?. The natioual ohuravter ac- quired by resideuce remains as long as the do- unicil continues, and: that coptinnes aot only as jong as the domiciled person couttues in ihe conn: try of bis residence, but until be acquires a new domicil. The law as to the continuance and chan :e of a diaicil is clearly sta‘ed in t.e tollowing quota Uon from an eniuent jugist.— * However, in macy ossecastual residence ‘6 mot indix peprnble to tain » cca ictt wfver It 1s acd Bog aire, bu t018 reteine @, anime svlo by \be mee wteution ao; to Rett, orto sovptwvotter [, there're @ pron Jeaven his howe for temporary parprees 6 It tits olsnge of place 1 oil Tous if age to sea or tua foreign ou ry for hi vieecvre or for busines of # temporary Catue vith o invertiom to retaco, such a traustery réeetdenos «old Oc COOstItWe® LEW dgwiCll, OF amount to ea Adsadua Went Of the Old Com, fir itis vor the mere act of whe Dirancy in @ pisoe which makes tr the domia oat tt te the ‘ect ce with be te entios of remaming here anime marenth”? (Scory's Con ot Lave § 44) At the very last ses of the Supreme Court of the United States, a cuse cume up for adjudisatioa, reseptivg @ question as to the doutoil of General onciurco at the time of his death. The decision, which was concurred in by all the judges of the bench fully sustains the correctness of the foregoing propositions in regard to domicil, particularly she two most important in Kosz%a6 case : first, acquired a Gow in the United States eooud, that did not lose it vy his absence in Tur (14: Howard's Reports 8. C. U. 5, 4: Av the national character, accordiug to of nstions, depends upon the domicil, it remains aa long as the domict! is revained, and is changed with it. Ko.zta was, therefore, vested with the na- tionality of an Americau citigen at Smyrna, if he, in contemplation of law, had a domicit in the United States, The authorities already referred to, show that to lose a domicil when once obtained, the domiciled person must leave the sountry of his residence with the intention to abandou that resi- cence, and must acquire a domicil in «nother. Both of there facts are necessary to effect a change of do: micil, but reither of them exists in Ko-zta's case. The facts show that he was o: ly temporarily ab-ent from this country, on private business, with no in- tention of.remaibing permanently, in Turkey, but on the contrary, was, at the time of his seizure await- ing an onportunity to return to the Unitea States. Whenever, by the operation of the Law of uations, an individual bezomes clothed with our uatoical cha- racter, be he a native bora or naturalized:citizen, an exile drtven from bis early home by politisal oppres- sion, oper cui; reut enticed from it by the hopes of a betes fortune for himself and his p sterity, he can claim the protectios of this government, and it may Tespoud tv that claim vut veing obiiged to ex- plain its conduct to any Joreign poxer, for it is its uty to make its nationality respected by other rc and respectable in every quarter of the globe. This right to protect persms hav'ng a domioil, though not vative-born or naturalized cit'zeas, rests on the firm fuindation ot justice; and the ctaim to be protected is earned by considerations which the pro tectiog power is not at liberty to disregard. du h dcmiciled citizen pays the satwe prive for bis orotec- tion as native bora or neturalized citizens pay for theise. He fs under the bonds of alegiance to the county of bis residence, and if he breaks them in- curs the same penalties; he owes the same obed.ence to the civil laws, aud must discharge the duties they impure on him; his property is in the same way, aud to- the same extent as theirs, i- ablo to contribute to the support of the gov- erpnent In war he shares equatly with them in the calamities which may betall the country; his services may be anaes for ita defence ; his life moay be perilled and sacrificed in maintaining ite rights aud vindicating its hover. fn nearly all respects bis and t. cir condition as to the duties and burdens of goverument are undistinguisbable; and what reasons can be given why, £0 far at least as re- gards protection to persons aud property abriad as well as at home his rightashould not ne co-extensive witb tbe rights of uative born or natura!ized citizeos? By tte law of natious they have the same nationali- ty; and wht mgbt bas any foreign power, for the urpore of making distinction between them, to look bebied the charucter given them by that code whica regulates nawonal intercourse? hen the law of nations determines the nxtionality of any man, for- eign goveroments are bound to respect its decision. They would bave no cause to complain if the pro- tectipg power should stand upon its extreme rights in all vases; but that power, in discharging its duties of protecting, may, for sufficieot re wons, have some regard for the civil distinctions whioh its own laws meke between the different c! of persons to whom it has the right, under international law, to extend its protection. It will natarally watch with more care, and may act with more vigor, in behalf of native born and vaturslized citizens, than in behalf of those who, though clothed with its nationality, bave not been so permavently incorporated into its political community. Giving effect to these well-established principles, and apply ine them to the taeta in the case, the re- sult ix, that Koszta acquired while in the United States ‘heir rational character; that he retained that charucter when he was seized at Smyrna, and that he bad a right to be res; ec'ed as such, while there, by Austria and every other foreign power. The right Of a vation to protect, and req Others to respect, at home and abroad, all who are clothed with its na- tionalty, is no new doctrine now for the first time brovght into operation by the United States. It is commen to all nations, and has had the sanction of their practice for aces; but it is new that at this late period, when the United States asserta claim to it as s8common inheritance, it should at once be disvo- vered that it isa doctrive fraught with danger and likely to compromit the peace of the world. The United States see no cause for alarm; no reason for renouncing for themeglyea what otbers have go long and f% hatmlessly enjoyed. Tbere may be reluctance in some cuastots to adopt the views herein presented relative to the doc- trine of domicil and consequent nationality, lest the practical assertion of it might, in some instances, give a right of protection to those who do not de- serve it. Fears are entertained that this doc offers @ facility fur acquiring @ national character which will lead to epee het that ander the shadow of it political agitators, intent u; distar> ing the repose of their own or other countries, might come to the United States with a view to acquire a claim to their pretestion, and then ¢o return to taeir former scenes of action to on, under a changed ational character. their ulterior designs with greater security and better success. This apprebension is believed to be wholly unfounded. The first distinct act done by them towards the accomplis ment of these designe would disclose their fraudulent pur- pore iu coming to and seeking a domicil in this country. Such a Ca would Lectin ong prove tbe fact that they acquired a domivil here and with it our nationality, Without that nation- ality they could mot be cousidered as standing under the protecting arm of the United States, and conse- queotly could have no right to claim, end no reason to expect, it would be exerted in their defence. Their iracdulect intent would defeat all they coad ‘hope to gain by « residence ia this country, and_by iosincerely professing to make it their home. The ibevtion entertained in good faith to make it such a home woud be wanting, and without such an inten- liow neither domicil vor nationali'y can be acquired. this consideration should ial suspicions that thix doctrine as to nationality and protection will not be ## safely used and as well gaarded from abuse by the United States as it bas been in times past, or moy be in the fature, by aay other euvereign power There is nothing in the doctrine herein maiotained, or tp the history of this government, to awaken the sligbteet apprebeusion that it is io any way inclined tw extene the shield of ita protection over adventur: ers or seditious provagandi-ts, who may go from this to other coup/ries to engage in evterorises designed to interfere with their political tnst‘tutions, or div torb their internal quiet. The libtral policy of the United States in regard to receiving immigrants from all nations, and ¢xtendipg to them the adres, AS PRICE TWO CENTS... tages of their free institutions, meskes it Justice op their peri to wa'ntatn the righ® of nation protection to ‘be tull extent su'hor z-d by é¢he law of ations avd ‘0 re-ist with firmvess avy attempt to impose new re-'rictions upon it, ‘There is another view of this case which pisces the craduct of the ageots of this governmest st Soy rye upon equatly cefensible grounds, The Admit Ticam consul there, und the Awerican legation sb Constantinople acted with great caution iu relation to Ko-zta's cluim to be regerded us eutitled to tro protection of this governmeut. Av bis aasturaliae tion had not been perfected, they he itated at thrst to receive him under thetr protection; but the facts show tbat they ultine'els yieloed to bu applicaaem a Tezkerch—in effect a corti fisare—tbai the person to whom it is given is owed for, and receives woder the prutectiun of the gow eroment whose ogen’ has g-anted it. By the laws of Porkey aod other easterm netions, the copsulates therem may receive under their pre- tection strangers aud sojuurners whose religiva end social manrers do vot a-similate oth the reli.cdee and mapners uf those countries The persons thus received become thereby invested with the nadomal- ity of the protecting consulate, These consulates, and other Karopean establishments in the Bast, ag in the constant babit of opening their doors for the reception of such inmates, who are received iere- spective of the ewantry of their birth or alloginecs., Jt 28 uot uncowmon for them to have # large sumber of such proveges. Iutervutionul law Bee; aad gar ctions the rights acquired by tuis counectioa. a Ip tbe ine of in t mr wo 10 bur0,s the rate thet man _ tebe treir rational character from the generat character couvtry in «hob they resice; acd chis rue apples twA@sice But in Aca sod Africe sa (naw recrw is keptup @ rion of « factery t ériabbatmeot under which they live au@ (ace, Tox rule applies to thoce parts of ths world from envions yes one ef cobe:, becauem foreiymers are not atentttad rtere as ip Kurope + apd rhe wearer part of the werd,” iwic the generm Dedy ardimees vf the aoulety ef ube ca tion bus Mey coniicue ot angers ead a jourcecs, 10 Ary DAoDa: Char-crer ueder the g-ueral seve yor be conn ry. (1 Kett’s Cam. 78-9 ) The Lords ot Appeals in the High Court of Ad- mira!ty » Englano decided, iu 1754, thata merchant carrying on trade at Smyrna, under the protectun of a Dutch coneul, wes to be con-idered a Dutonman: asx to bis national character. (Wheaton’s Intec. Law 384,3 Rub Aom. Reports, 12.) This decision bss been examined snd approved. by the eminent jari-is who haye since written trear tres on international law, According to the principle established in this ease, Kornts was invested with the nationality of the Dat- ted States, it he bad it not before,the moment he wae under the protection of the American Consul af Smyrna ano he American logation at Constantine ple That be was so received is established by the Tezkerch they gave bim, aud the efforts they made tor his release. Che Chargé d@ Affaires, ad mterim,of the United Stotes at Constaatwogle, in letter of the 26th of Juve, addressed to the imperial interauacés btates :—"' It was on presenticg this declarstion allegivnce to the consulate of the United States of America at Smyrna, and to this fegetion, that the said Korzta was furmehed with a Tezkereh to come to Constantinople and to return to Smyraa, wheaca be was to start for New York. Siuce bis arrival im Tukey he bas resided under the protection of government, aud iti» a pleasure to me to be able te anise bis conduct has always been irreprosoh- able.” Having been received under the protection of these Awerioa: establishments, be bed thereoy acquired, according to the luw of nations, their natiouality, and whe. wronged and outraged as he was, they might interpose tor his lineration, and Capt. Ingrar ham hed a right to cooperate with the n for the ac complishment of thet object. The exceytions tekes to the manner of that cv operation remain to be com- sidered. In relation to the deportment of the Americam age: ts towards Mr. Weckbecier, the Austrian Goa- su-Gener:! tie undersigned cannot conceive taas there can be any cround of complaint. ecrrae dove to or with bim by Mr. Offey, oar Consul Smyrna can possibly imply disrespect to the Empe- rerof Austria. Neither in his private character, per asafunctionary of tee Austrian goveroment, di@ Mr. Wecdbecker take on open or au avowed sact tm the opering sven the outrage. His agency im thatafiir at its commensemeat was clundestings This course implied a consciousness on bis part that the act wus inde ensivle The fact that he sought the aid of the civil authority of Turkey to get Kosta into his pes-sasion proves that he knew the mode he resorted to for that gurpose was itlegak ‘Bue appli- cation of Mr Oftey to him to assist in. and consent to, Ko-zts’s release, was certainly nv offence, aud tare srespect eitber to him or his goverument 1 cf Me. Brown to Ceptaic Ingrahaa to intirpore for the liberation of Kosgta, aud hig advice to effect it in the way it was done, must be regarded, not only as proper, but praive worthy acts previced Captain Ingrsbam’s condact san be vindicate justiticetion of Captain Ingraham will cor ‘e Mr. Brown from all ceDsure. stein Ingreham’s course was righé, rwn's cannot be wreag. Che commander *. Louis was placed in a truly emoarras ing position. Cherged with the protection of the persons and property of those who bad a right to the protection of bis yoveroment, it was, at the same time, no less his imperative duty to respect the aa- es of all countries in friendly relations with hig own. After unxionsly considering the case presented to him at Smy he determined that he ought te effect the release of Korzta, aud, if unavoidable, re sort to force to accomplish it it bus excited some surprise bere that, after a com sideration of the circumstances, an impres-ion should be entertained in any quarter that Capt. Ingraham either committed or meditated hostitity towards Austria on that occasion. In jing upos his com duct it is necessary to keep in view the conclasions established, ss the undersigned believes, in the ceoing remarks; for he, wi hout doubt, acted precisely the same conclusions. He believed Korzta had been seized without authority, that be was illegally imprisoved, and that he ought at once to be set at liberty. The first aggressive act in this case was the aeizure of Koezts at Smyrna, committed by the procurement of tae Austrian fuvctionaries—the first Toe adnng of @ national ship, the imprisonment of Kote therein, was made by the commander of the Aus trian brig Huser. That ship was converted inte @ prison for the illegal detention of a Pron clothed with the nationality of the United — and consequently entitled to their protection. Austria upholds, as it appears she does, the condact of the commander of the Hussar, she is in fact the . first aggressor. Tais act of the commander of the Hussar led to the veries of other acts which annati- tute the ground of complaint against the United States. The alleged authority of Austria under trea- ties being eet aside, no one would have questioned Ceptain Ingrabam’s right, had he been arrest the proceedings of the kidnap; streets of Smyrna, and rescue Kresta from hands. They were acting without, and against, the civil authority of the place; they were comeing an atricions outrage upon @ person invested the nationality of the United States. If he could have properly interfered in the first stage of this lawless transaction, he might doso in the last. The act waa, in all its stages, a continuous wrong, and the characte of the actorg, though there was a succession of per- sobs, W839 they were all 4 aud if they cbanced to have e national ad and poorectee Led _~ tha purpcee of consummat wrong, , thus Srecorated was not entitled to the pri ‘ of sanctuary. Those who had the right to the power to release, the prisoner confined therein, might treat it as a prison, and w' might for degraded to such an j purpose and be excused for forgetting, that it wase ship. here is a consideration, not brought te the notice of Austria, and reetsitlcieatiy regarded by otbers, which places the acts of Captain Ingrshaus in @ trae light, ana repels the inference of intended hostile demonstrations towards Austria. It was the understanding of the that Kosste should te retained at Smyrna while the question of his nationa- lity was pending. Captain [nzrabam received satis» factory evidence of a design, on the part of the Austrian functionaries at Smyrna ead Constan' to foehs this arrengement, and remove hig clandestinely from the Hussar on board of @ steamer, for the purpose of a him to Trieste. infurmation was such s8 did not permit Cxptaia In- zrabam to doubt that the commander of the Hussar coucurred i . this design, and inteoded to sid in car- rying {t into effect, By this evidence of the want of ood faiuh on the port of the Austrian tauctionaries, in which the captain of the Hussar was fmplicar the captain of the St Louis was placed in the plexing a:ternvtive of surrendering the captive, wi oot further efferta, to the sad fate which awaited him, or to demane bis immediate release, aad ia exse of refueul to enforce it. The government of the United States exceedingly regrets that he was re duced to this paivfui alternative; bat it cannot dud, after a tull consideration of all the circuastances, any good reasons for disapproving the course bod ye sued. It is not just to Captain (ngranam to look at the affair as it «4a at tre precise poiat of time whee the demand for the release of Koegta was made, The antecedent eventa quailfy and legalize thatact. The Austrian fonctionsries hed obtained posscesion CONCLUDED ON RIGUTH PAGB,