1854. Argument against the jurisdiction. OCT. SESSIONS, Federal Constitution, the only question will be, what is the American view? We have sent as an American minister, one Frenchman, Mr. Galatin, to the court of France; and another Frenchman, Mr. Soulé, to the court of Spain; and by the law of allegiance, as laid down in England, our present minister in London is a subject of the British Queen. The English courts, whose decisions ever run in parallelism with English interests, may decide what they please. We settle the law on some subjects for ourselves. * See The Washington Sept. 29, 1853. The case of Martin Koszta, though a diplomatic and not a judicial case, is in point.* Koszta, by birth Union, Extra, an Austrian subject, had been engaged in an unsuccessful attempt at revolution against the Emperor of Austria; and fleeing from the Austrian dominions to Turkey, had, in 1851 or thereabouts, come by agreement of the Emperor to the United States, on condition that he should not again set foot on Ottoman soil. In July, 1852, he made the usual and proper declaration here of his intention to become a citizen of the United States, and to renounce all allegiance to any other state or sovereign, and particularly to the Emperor of Austria. After remaining here about two years, he returned to Turkey for purposes of private business of a temporary kind, where he placed himself under the protection of the American consul, who gave to him a Tezkera, or kind of passport or letter of safe conduct. Soon after this he was seized by agents of the Emperor of Austria, and against his will, put on board an Austrian ship of war, to be taken into the Austrian dominions. Captain Ingraham, commanding an United States sloop of war, demanded his release under threat of a resort to force if the demand was not complied with by a certain 1854. hour. The prisoner was surrendered by the Austrian OCT. SESSIONS, sloop to an agent satisfactory to Captain Ingraham, Argument and he came afterwards to America. This interfer- against the jurisdiction. ence was complained of by Austria, which declared that it "could not consider the individual in question as belonging to a foreign jurisdiction so long as the ties which bound him to his country were not legally dissolved." And that even if Koszta "could, without violating the laws of his own country, of his own accord, and without any other formality, have broken asunder the ties which bind him to his native soil," yet in this case he had "done nothing more than declare his intention of becoming a citizen of the United States, and with that object in view, of renouncing his rights of nationality in the States of the Emperor.' But how was this doctrine answered by our government? It declared, on the subject of allegiance generally, that the sounder and more prevalent doctrine is "that the citizen or subject having faithfully performed the past and present duties resulting from his relation to the sovereign power, may, at any time, release himself from the 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." And while it was not contended that the "initiatory step in the process of naturalization invested him with all the civil rights of an American citizen," such step was declared to "be sufficient, for all the purposes of this case, to show that he was clothed with an American nationality, and that in virtue thereof the government of the United States is authorized to extend to him its protection at home and abroad." The government ac 1854. Argument against the jurisdiction. OCT. SESSIONS, Cordingly defended the acts of all its agents; not only of Captain Ingraham, who claimed possession of a man having an American Tezkera or passport (which was enough to justify him), but of the American consul, who, on learning of Koszta's mere "declaration of intention," had so far regarded him as an American citizen as to give him a document usually given to citizens alone. Indeed, the secretary of state afterwards went further than he need have done for this case, in saying that mere domicil, animo manendi, or without any present intention of removing herefrom, gave such nationality. Now, if Koszta was an Austrian, and "a foreign subject," what right had our government to prevent Austria's final control of him? By interfering as it did, completely and thoroughly, our government declared in an emphatic manner that he was not an Austrian subject; that whatever new character he might or might not have as yet acquired, he had lost his old one. No doubt, as a legal view, this, merely on our principles of allegiance, was right. We can well conceive, under our laws, of inchoate or initiate citizenship; and inchoate American citizenship is inconsistent with the completeness of any foreign subjection; perhaps with its existence at all. A man, it is true, must have a domicil somewhere; and he must have perhaps a national character. But it has not been decided that he must necessarily be a citizen totus, teres atque rotundus; invested with all political and civil rights of citizenship of the most favored class. Citizenship, under the American view, may be in a state of transition, which is enough for our purpose; though the more true view, in respect of legal analogies, is the one above mentioned, st. that of citizenship initiate. The alien has undoubtedly cer 1854. against the tain political rights by the mere declaration of inten- Argument tion; for he has a right, at the end of three years jurisdiction. thereafter, on complying with certain terms, to become a citizen complete. His case finds a legal analogy in that of a tenant by the curtesy; who has no rights till the birth of issue; and no perfect rights till the death of the wife. powers. But a man may be a subject within the terms of the Constitution, and yet not be a citizen within the naturalization or any other laws. Koszta, though not a citizen within these or any other laws, was so far a subject that he claimed and received the most ample protection of our government; a protection which certainly we do not extend to the subjects of foreign We justified an act of war for this man. Our government in discharging" what it called "its duties of protection," regarded him as its subject, bound by its laws, and bound to act as it directed. Great Britain and the United States have millions of subjects who are not citizens at all. Many of the people of the East, and some, probably, of the West India isles, are British subjects, but not British citizens. It must be recollected, that the delay after thus making the declaration, before the alien becomes a citizen, is not of his own seeking. He does not say, "I don't intend to become a citizen now, but will consider the subject a little and see whether I will give up my allegiance to my native country." He is willing and anxious to become a citizen at any time; but the United States, for their own protection, and to prevent persons inexperienced in our institutions and mode of carrying on our government from interfering in a matter they don't understand, requires a 1854. Argument against the OCT. SESSIONS, term of probation, during which they may learn more of our affairs, and thus become better fitted for taking jurisdiction. part in them. No foreigner who has declared his intention of becoming a citizen, would be unwilling to have the process completed at that same time. The simple act of swearing to an intention to renounce all allegiance to the Queen of Great Britain and Ireland, is an act inconsistent with the idea of any further continuance of that allegiance. It has been held, that after making the declaration of intention, there must be a continued and uninterrupted residence of five years in this country; and that any absence, however short, is sufficient to prevent subsequent naturalization. Now it would be unjust thus to require a man to remain here, and yet to assert at the same time that he was a foreigner, and not entitled to protection as a citizen of the United States. Is this requiring him to remain here consistent with the idea that our law considers him as remaining a foreign subject? This government, we have seen, has avowed its intention not to be guilty of this injustice; and further, that it will protect such persons and redress their injuries, even should those injuries be inflicted by the country claiming the allegiance. It can scarcely be that we would avow a doctrine in our intercourse with foreign nations, which we reject when applied to ourselves. That we should say to England "Mr. Byrne is entitled to our protection even against you, because he has ceased to be your subject," and yet, when he, himself, here asserts that he is not a subject of England, that we should deny it and say that he was. If we look at the light in which a person, thus making a declaration of intention to become a citizen, |