refused to return him to Austria, but expelled him from their territory with the consent of Austria and with the understanding that he should go to foreign parts. Koszta came to the United States and established a domicile in this country. In 1852 he made a declaration of his intention to become a citizen of the United States before the proper tribunal in the usual legal manner. After remaining nearly two years in the United States he proceeded to Smyrna, in Turkish territory, on account, it is stated, of private business of a temporary nature, claiming the rights of a naturalized citizen of the United States, and offering to place himself under the protection of the United States consul at Smyrna; the latter official, after a delay, extended protection to him, giving him a letter of safe conduct, which, under the Turkish laws, they have a right to do. While waiting in Smyrna, as is alleged, for an opportunity to return to the United States, he was seized by some people without any authority, treated harshly, and finally thrown into the sea, from which he was picked up by a boat from the Austrian brig of war- The Hussar ”. taken by force on board that vessel and confined in irons. Application on the part of the American consul and our chargé d'affaires for his release was unsuccessful. The U. S. S. "St. Louis," under the command of Captain Ingraham, arriving in the harbor of Smyrna at this time, representation was duly made to Captain Ingraham concerning the state of affairs. After full investigation of the matter, and after being convinced that it was the intention of the commander of "The Hussar" to convey Koszta to Austrian territory, Ingraham made a demand for his release, intimating that he would resort to force if the demand was not complied with by a certain hour. An arrangement was, however, made by which Koszta was delivered to the French consul-general at Smyrna, there to remain until he should be disposed of by the mutual agreements of the consuls of the respective governments at

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that place. Pursuant to that agreement he was released and returned to the United States.

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Professor Moore, in the Digest of International Law, sums up this case as follows: The full substance of the correspondence between Mr. Marcy and the Chevalier Hülsemann concerning the Koszta case has been given, and to this have been added other discussions of and comments upon the case by Mr. Marcy himself, and his immediate successors, in order that the misconceptions that have so widely prevailed on the subject may be removed. First of all, it is seen that the supposition that Mr. Marcy held that Koszta's declaration of intention gave him an American character and a claim to the protection of the United States is not only destitute of foundation but is directly opposed to his frequently expressed opinion. He referred to the declaration of intention merely as an evidence of domicile. In the second place, there likewise disappears the supposition that he held that a domiciled alien, even where he had made a declaration of intention, was entitled to the same protection abroad as a citizen of the United States, or yet to protection against the claims of the country of his original allegiance lawfully asserted, either there, or in a third country. In the third place, it appears by Mr. Marcy's instruction to Mr. Marsh, of August 26, 1853, that the claim that Koszta had at at the time of his seizure an American character was based, in the first instance, exclusively upon his having been duly admitted to American protection, according to the recognized usage in Turkey."

"The links in Mr. Marcy's chain of reasoning were (1) that, as the seizure and rescue of Koszta took place within the jurisdiction of a third power, the respective rights of the United States and Austria, as parties to the controversy that had arisen concerning that transaction, could not be determined by the municipal law of either country, but must be

determined by international law; (2) that, as the previous political connection between Koszta and the Austrian Government had, by reason of the circumstances of his emigration and banishment, been, even under the laws of Austria, dissolved, he could not at the time of his seizure be claimed as an Austrian subject, nor could his seizure as such be justified by Austria, either under international law or her treaties with Turkey; (3) that the seizure in its method and circumstances constituted an outrage so palpable that any bystander would have been justified, on elementary principles of justice and humanity, in interposing to prevent its consummation; (4) that there were, however, special grounds on which the United States might, under international law-that being under the circumstances the only criterion-assert a right to protect Koszta; (5) that, although he had ceased to be a subject of Austria and had not become a citizen of the United States, and therefore could not claim the rights of a citizen under the municipal laws of either country, he might, under international law, derive a national character from domicile; (6) that, even if Koszta was not, by reason of his domicile, invested with the nationality of the United States, he undoubtedly possessed, under the usage prevailing in Turkey, which was recognized and sanctioned by international law, the nationality of the United States, from the moment when he was placed under the protection of the American diplomatic and consular agents, and received from them his tezkereh; (7) that, as he was clothed with the nationality of the United States, and as the first aggressive act was committed by procurement of the Austrian functionaries, Austria, if she upheld what was done, became in fact the first aggressor, and was not entitled to an apology for the measures adopted by Captain Ingraham to secure his release; (8) that Captain Ingraham's action was further justified by the information which

he received of a plot to remove Koszta clandestinely, in violation of the amicable arrangement under which he was to be retained at Smyrna while the question of his nationality was pending; (9) and finally, that, as the seizure of Koszta was illegal and unjustifiable, the President could not consent to his delivery to the consul-general of Austria at Smyrna, but expected that measures would be taken to cause him to be restored to the condition he was before he was seized."

Aliens as travellers passing through territory of a State.— Aliens may also come under the jurisdiction of a state, even when not domiciled, while they are within its limits as travellers passing through its territory. The range of jurisdiction is, of course, much more limited than when the alien is domiciled with a more or less permanent tenure of stay. They are, of course, subject to the criminal laws of the state and to the laws regarding the contracts which they make in the course of their travels. In no case, however, are the political rights of such travellers affected by their temporary sojourn in a foreign state.

A State has jurisdiction over pirates captured by its vessels. A state has jurisdiction over all pirates seized by its vessels. Piracy is a crime under international law, and as such pirates are outlaws and the enemies of every state, and hence can be arrested by anyone and brought to trial for this offense in any jurisdiction. By the act of piracy the offender and his ship lose not only national character and protection but are placed within the jurisdiction of any state that may through its agent become the captor. By international law the proper punishment is death; but this is not mandatory when any state which by its own law does not award the death penalty. So, too, international law does not require the pur

'Moore's Digest, Vol. 3, pp. 843, 844, 845.

suit and punishment of pirates as a duty. Germany, for instance, by its commercial code does not permit the punishment of pirates who are foreigners committing piracy against foreign vessels.

Jurisdiction over the air above the territory of a State.So far it may be said that the territorial possessions of a state consists of land and water. The question, however, has arisen as to the status of the atmosphere above this territory of a state. With the advent and development of wireless telegraphy, aeroplanes, dirigible balloons, etc., the question of the freedom of the air above this territory has arisen. If it should be declared free like the high seas, certain rights of self-protection and defense must be reserved to the states concerned. If the air should be considered, on the other hand, as territorial, the right of innocent passage must be allowed for persons, messages and aerial machines. Naturally, the extent of such aerial jurisdiction will be largely measured by the extent of physical control over the things contained in the atmosphere. A general agreement upon the lines suggested does not seem impracticable.

The claim to jurisdiction over foreigners for offenses committed abroad.-A number of states in Europe and America, including France, Germany and Austria, punish foreigners who have committed crimes in foreign jurisdiction against the safety of their states. Russia and Italy with others go further and punish offenses against their individual subjects, such as murder, arson and forgery, though committed in a foreign country by persons of foreign nationality. Of course, the offenders cannot be tried and punished unless they come within the territory of the offended state. This claim has been rigorously contested by the United States and is not enforced by Great Britain nor conceded by British writers. Notwithstanding the opposite opinion held by the other nations, the law and practice of the United States is expressed