having, we believe, since expired. In the year 1870 a new extradition act was passed, to which all future extradition conventions with foreign countries were to conform. One of its provisions (3, 12) forbids surrendry of criminals, unless the state demanding them shall pass a law to the effect that the extradited person shall not be tried or detained "for any offense committed prior to his surrender, other than the extradited crime proved by the facts on which the surrendry is grounded." This, which could hardly apply to the United States, as it would alter or add by law to the conditions of a treaty, is highly reasonable; and yet the difficulty remains unprovided for, that one of two cognate crimes, such as forgery and uttering forged paper, might be charged upon a man who was guilty of the other. It would promote the interests of justice, if the demanding nation in such a case could get the consent of the surrendering nation to a trial for that offense, and meanwhile be allowed to keep the extradited person in confinement.

A number of treaties of extradition belong to the eighteenth century. The earliest perhaps are those of Holland with Austria and France, in 1718.1 Among the memorable particulars of later treaties we mention the stipulations of Switzerland to surrender political criminals to Baden (1808 and 1820), and to Austria and France in 1828. Russia, Austria, and Prussia have had similar arrangements in regard to Polish districts (1834). In certain conventions of Belgium it is stipulated that extradition may be refused on account of equity and humanity. In some treaties the obligation ceases after a certain limit of time, according to the analogy of other criminal prosecutions. Again, some treaties require before extradition, when a crime is committed outside of the man's proper home, that the authorities of his home be asked to give their consent to the act.2

1 Compare Phillimore, i., ch. xxi., and for the law referred to in the text, i., Appendix x., of the same work.

2 Compare Professor Bulmerincq, of Dorpat, in Holtzendorf's Rechtslex., article "Auslieferung."

§ 79.

Political

The case of political refugees has some points peculiar to itself. A nation, as we have seen, has a right to harcrimes. bor such persons, and will do so, unless weakness or political sympathy lead it to the contrary course. But they may not, consistently with the obligations of friendship between states, be allowed to plot against the person of the sovereign, or against the institutions of their native country. Such acts are crimes, for the trial and punishment of which the laws of the land ought to provide, but do not require that the accused be remanded for trial to his native country.

Case of

§ 80. APPENDIX.

A CASE, somewhat anomalous, and remarkable, which involves several points of international law, relating to the condition of aliens Koszta. and the protection due to them, is that of Martin Koszta. This man, who had been engaged in the Hungarian rebellion of 1849, fled into Turkish territory with a number of others, and, at length, after refusal to deliver him up to Austria, was, with the understanding of that government, sent out of Turkey into foreign parts. "It was alleged that he engaged never to return," says Mr. Marcy, "but this is regarded as doubtful."1 The man chose the United States as his place of exile, and in 1852 made the usual declaration, preparatory to being naturalized, which our laws require. In 1854 he returned to Turkey, on account, it is said, of private affairs. At Smyrna, being provided with a tezkereh, or passport from the American consul there, and from the acting chargé at Constantinople, he was seized on land, thrown into the water, taken up by the boat's crew of an Austrian frigate, and put into irons. This was done at the instigation of the Austrian consul-general at Smyrna, and after refusal of the Turkish governor to allow his arrest. Intercessions for his release on the ground of his American nationality were ineffectual. Finally, when it was reported that a design had been formed of removing the man by stealth into the dominions of Austria, the captain of a public vessel of the United States,

1 Mr. Hülsemann's letter to Mr. Marcy, and his reply in Senate documents, 33d Congress, 1st Session, vol. i.

then in port, prepared to resort to force, unless he were released.

This led

to an arrangement, by which he was put under the custody of the French consul-general, until the governments which were at issue should agree what to do with him. He afterwards went back to the United States.

The following are some of the points which arise to view in the discussion of this case :—

1. Granting that the man was an Austrian subject, could he be legally seized in Turkey? His crime had been a political one. The Turks had refused, with the approbation of ambassadors of the most important Christian powers, to deliver up the Hungarian fugitives, on the ground of the political nature of their offense.

It was said that the exterritorial consular jurisdiction mentioned below (§ 100), authorized his arrest. The reply of Mr. Marcy to this is, that such jurisdiction was intended for a different set of cases, and such is probably the fact. The Austrian officials (if this be so), in seizing him, committed an offense against the sovereignty of Turkey, and so, an offense against the law of nations.

2. But was he an Austrian subject? Austrian nationality ceases, according to what is said in § 70, on the authority of M. Felix, when a subject emigrates with the consent of the government. He had more than the consent of his government to his abandonment of his country; he was forced into exile. He had, then, no domicil, unless the United States gave him one, and since exile cut off all relations of citizenship, the only power that could protect him was that in whose territory he resided. This it was bound to do. But to this it might be replied, that he had agreed in writing never to return to Turkey, and that the Austrian claim upon him would revive on his failing to fulfill this condition. It is indeed questioned by Mr. Marcy, whether he engaged never to return; and it might perhaps be said, that, if such an engagement existed, it related only to return for political purposes. But to this Austria might reply, that she could not know what his purposes were, and that the promise must be absolute, in order to prevent his doing political mischief in the neighborhood of Hungary. This, however, is a point on which our diplomatist preserves silence.

3. What were his relations to the United States? Not those of a citizen, but of a domiciled stranger. His oath, declaring his purpose to become a citizen, and his long stay here, put this out of the question, and his temporary absence could not shake this character off. Moreover, he had a passport, certifying to his American nationality. He would therefore be entitled, by the law of nations, to the protection of the Turkish authorities against his Austrian captors. Had he been even a fugitive prisoner of war, he could not lawfully have been seized on shore, unless treaty had so provided. He would equally be entitled to all that protection which officials of the United States were authorized to extend to him within Turkish territory.

4. Would it have been in accordance with international law for the captain of the frigate to use force in protecting him within the port of Smyrna? Active and aggressive force certainly not. As things were, the demonstration of force saved the use of it. But to complain of such force would have fallen to the duty of Turkey, as it would have taken place within her waters. As for force, absolutely considered, for instance on the high seas, Austria could not have complained, if the evils of a sudden wrong on her part were in that way sought to be prevented.

At the bottom this was a case of collision between original and transferred allegiance, the latter in its incipiency, in which the obligation to protect the person, within the limits of the law of nations, lay on the United States. How Austria could have dealt with him within her own territory is another question. And it must be admitted that his mere declaration to become a citizen of the United States did not affect his nationality.

tween na

We have hitherto considered the duties and usages of nations, so far as they relate to their treatment of in- General dividual aliens who are within their territory. We comity benow pass on to the conduct which is due from one body politic to another, and to the representatives by whom public intercourse is managed.

tions.

The general duties here required are those which are included in the word comity: we call them duties at their origin, as being more or less indefinite, and not of strict obligation; but they become obligatory, if by compact or compliance with usage a nation takes them upon itself in a specific shape. These duties are such as polite treatment of a sovereign or of his ministers in a foreign country, courtesy in diplomatic intercourse, the observance of court etiquette, and of respect on the sea towards a foreign flag. Besides duties such as these, we place under this head respect for the reputation of a foreign state, which is, as we have seen (§ 18), a thing of strict justice.

The use of formal expressions of courtesy among nations consists in their preventing jealousies and quarrels. At the same time they may themselves be the causes of disputes, for when once established by usage, to withhold them is a slight;