somewhat extreme position to the peculiar circumstances under which it originated.

In brief, the facts were that Koszta, a Hungarian by birth, fled Austria after the rebellion of 1848 and escaped to Turkey. Turkey having declined Austria's demand for his extradition, he was released by Turkey on the understanding that he would leave Turkey and not return. This appears to have been with Austria's consent. Coming to the United States, he made a declaration of intention to become a citizen, and after a residence of somewhat less than two years, returned to Turkey on alleged private business. He placed himself under the protection of the American consul at Smyrna, and received a tezkereh, or local protection paper. While at Smyrna, awaiting an opportunity to return to the United States, he was arrested under violent circumstances by Austrian authorities claiming to have the right to arrest him under the capitulations between Austria and Turkey. The arrest was made without the authority and over the refusal of permission of the Turkish governor. Koszta was taken on board an Austrian war-vessel and confined in irons. The demand of the American consul and chargé for his release having been refused, an American war-vessel in the harbor threatened to sink the Austrian ship unless Koszta was at once delivered up. As a compromise, Koszta was turned over to the French consul until the matter could be settled by the two governments concerned, and in the end Koszta was sent to the United States, Austria reserving the right to proceed against him should he return to Turkey.

Secretary Marcy's argument in support of the right of the United States to protect Koszta1 was based upon several grounds, the most important of which were: (1) that the seizure of Koszta having taken place within the jurisdiction of a third power, the respective rights of Austria and the United States were to be determined, not by the municipal law of either country, but by international law; (2) that although Austria claimed him as its subject he had been practically banished when he left Turkey, by agreement, with Austria's consent,

1 The argument is set out in full in Mr. Marcy to Mr. Hülsemann, Sept. 26, 1853, H. Ex. Doc. 1 and S. Ex. Doc. 1, 33rd Cong., 1st sess. See also Moore's Dig. III, 824-834.

and that he was, even by Austrian law, no longer an Austrian subject; (3) that Austria's seizure could not be justified under her treaties with Turkey or international law, Turkey having expressly refused permission to make the arrest; (4) that among the special grounds which sustained the right of the United States, under international law, to protect Koszta were: (a), the fact, that although not a citizen under the municipal laws of the United States, he had by virtue of his domicil and declaration of intention to become a citizen, acquired, in international law, a national character as American; and (b), even if this were not so, he had, by placing himself under the extraterritorial protection of the American consul at Smyrna, become invested with the nationality of the United States.

§ 251. Erroneous Interpretations.

Mr. Marcy's contentions in the Koszta case led to various erroneous interpretations and constructions and misconceptions of law, some of which, even up to recent years, have resulted in some confusion of thought. It was, for example, assumed that a declaration of intention may be considered as conferring an American character and a right to diplomatic protection in a third country. Mr. Marcy's own firm denial of any such construction of his statements has not altogether served to cause its abandonment. In fact, it will be recalled that the Act of March 2, 1907, confers a right to issue a limited passport, under certain special circumstances, to declarants. Apart from this special case, a mere declarant has no claim of right to American protection,2 and in recent years when an attempt has been made to found a claim to American protection in a third country upon a declaration of intention, the Department has replied:

"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 re

1 Supra, p. 501. In every other case, the passport is as firmly refused to a declarant as it is to any other alien.

2 The extension of good offices has on one or two occasions been authorized in countries in which the U. S. exercises extraterritoriality. Supra, p. 569.

This is not an accurate statement of Mr. Marcy's position, for he considered the declaration of intention and domicil together, and regarded the former as evidence of the latter.

garded as applying particularly to the peculiar circumstances in which it originated, and to relate to the protection of such a declarant in a third country against arbitrary seizure by the Government of the country of his origin." 1

Again, it was for some time supposed that Secretary Marcy considered a domiciled alien entitled abroad to the protection accorded a citizen, on the ground that when resident in the United States such domiciled alien owed temporary allegiance to and was entitled to local protection by the United States. While this erroneous belief was short-lived, traces of it may be discovered in positions assumed by the Department of State at various times attributing some vague title to special protection abroad to the fact of domicil in the United States, especially when accompanied by a declaration of intention. President Cleveland, in 1885, even made a recommendation to Congress that the rights of such persons should be defined by statute.2 Based upon an opinion by Dr. Wharton, Solicitor for the Department of State, to the effect that certain civil rights attaching to domicil are entitled to international recognition, Secretary Bayard in 1885 instructed the diplomatic officers of the United States that persons domiciled in the United States, although not naturalized, are entitled "to maintain internationally their status of domicil, and to claim protection from this government, in the maintenance of such status." 3 For several years thereafter instructions were issued in several cases extending a vague degree of protection to persons domiciled in the United States, who, having declared their intention to become citizens, were temporarily abroad. Fortunately, this peculiar confusion between domicil and nationality was of comparatively short duration, and Secretary Bayard himself became convinced that his instruction afforded no satisfactory rule of action.5 In the revision of the instructions to diplomatic officers in 1897 the reference to domicil was omitted. Finally, there is evidence that Secretary Marcy himself regarded

1 Mr. Olney, Sec'y of State, to Mr. Denby, Jan. 15, 1897, For. Rel., 1896, 92–93. Reaffirmed by Mr. Hay, Sec'y of State, to Mr. McKinney, March 20, 1893, MS. Dom. Let. 544-546.

2 Congress took no action upon the recommendation. Moore's Dig. III, 846. Printed personal instructions to diplomatic agents, § 118.

4 Burnato's and King's cases, Moore's Dig. III, 847-850.

5 See Baron Seillière's case in France, For. Rel., 1887, 303 et seq.

his expressions as to the effect of domicil and declaration of intention upon national character as dicta, inasmuch as his position in the Koszta case rested principally upon the fact that Koszta had placed himself under the protection of an American consul in Turkey, according to the recognized usage in that country.1 International law sanctions the right of protection thus acquired, and to this extent, the position of Mr. Marcy has had general approval.2 Much doubt, then, may be said to exist as to whether the protection extended in Koszta's case in Turkey would have been extended in any third country, as has sometimes been asserted. Moreover, it seems certain, according to Secretary Marcy's own instructions in D'Oench's and in Tousig's case, that such protection would not have been extended had Koszta voluntarily returned to Austria and placed himself within the jurisdiction of its municipal laws. This is simply in line with the general rule that even American naturalization will not protect a citizen on return to his native land from penalties incurred there prior to his emigration.

3

§ 252. Decisions of United States-Mexican Commission of 1868.

We may not leave this subject without referring to certain decisions of the United States-Mexican commission of 1868, in which proof of domicil in the United States plus a declaration of intention at the time of the origin of the claim was held a sufficient title to admission to standing before the commission as a "citizen" of the United States, provided that subsequently to the origin of the claim, the claimant has completed his naturalization.1

1 Sec'y Marcy to Mr. Marsh, Aug. 26, 1853, Moore's Dig. III, 835–836; Lawrence's Wheaton (2nd ed., 1863), 230.

2 Lawrence's Wheaton (2nd ed., 1863), 230; Morse, op. cit., 6, 70, 244; Calvo, cited by Morse, 70; Woolsey, cited by Hall (5th ed.), 243; Webster, op. cit., 143. See Westlake's view, I (1904 ed.), 201. Mr. Marcy's position has also been defended on the ground that Turkey's evident inability to protect Koszta against Austria's violent and unlawful aggression warranted the United States in intervening.

Moore's Dig. III, 838. See also Marcy's note to Baron de Kalb, July 20, 1855, ibid. 841, and Mr. Davis' instruction, May 12, 1869, ibid. 843. See also 54 St. Pap. 467 and Cockburn, op. cit., 123–124.

4 ✦ Jarr and Hurst (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2707, where claimants were domiciled in U. S., had declared their intention, had shipped as seamen

When Sir Edward Thornton became umpire of the commission he declined to follow the peculiar rule of these decisions, but acted upon the principle that neither a declaration of intention nor domicil, singly or together, could confer citizenship.1 This principle was adopted by other commissions.2

DUAL NATIONALITY

253. Manner in which it Arises.

By the municipal law of the United States all persons born in this country of alien parents are citizens of the United States. This government also recognizes, as well as adopts, on its own part, the rule that children born abroad of citizens are themselves citizens of the country to which the parents owe allegiance. There arises, therefore, by reason of the concurrent operation of the jus soli and the jus sanguinis, a conflict of citizenship, spoken of usually as dual allegiance. Inasmuch as each state may determine for itself the methods for acquiring and on an American vessel, and after the injury, had completed naturalization. The decision was largely influenced, it is believed, by J. Hubley Ashton's ingenious argument, ibid. 2708. The decision may be considered dictum, as the claim was dismissed as having been previously settled. Palacio, commissioner, held that the claim to protection "should be essentially attached to [claimant's] real and actual presence" in the U. S. In Gosch (U. S.) v. Mexico, ibid. 2715, Umpire Lieber reluctantly held, following the Jarr and Hurst cases, that a son whose father made a declaration of intention when the son was sixteen, but had completed naturalization only after the son's majority, the son having lived in Mexico before he became of age and up to the date of the injury out of which the claim arose, was entitled to an award as a "citizen of the U. S." This must be considered another poor decision of Dr. Lieber, for he failed apparently to understand the limitations set by Palacio upon the Jarr decision. See also Sprotto, Assignee of Hellman, v. Mexico, ibid. 2715, 2717, and Eigendorff v. Mexico, ibid. 2717. In Schreck v. Mexico, the claim was dismissed as claimant had apparently not established his domicil in the U. S. when the claim arose, ibid. 2720. When the naturalization was not shown to have been completed, however, the claim was dismissed for lack of citizenship. Perez v. Mexico, ibid. 2718; Kern v. Mexico, ibid. 2719 and cases cited, 2720.

1 Milatovitch (U. S.) v. Mexico, No. 395, MS. Op. IV, 350–351; Wilkinson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2720; Gros v. Mexico, ibid. 2771, 2772; Zamacona, Palacio's successor as Mexican commissioner, seems to have acted on the same principle, ibid. 2720.

2 Beales (U. S.) v. Mexico, Domestic commission, Act of March 3, 1849, Moore's Arb. 2669; Rojas (U. S.) v. Spain, Feb. 12, 1871, ibid. 2337; Wilson (U. S.) v. Chile, Aug. 7, 1892, ibid. 2553. See also as to nugatory effect on citizenship of a mere declaration of intention, supra, p. 566.