and claims over Koszta the same rights it would have possessed, and might have exercised, had he been found upon Austrian soil.

This claim is founded on the old French capitulations (which are the basis of the extraordinary exemptions and privileges enjoyed by the foreign legations and by Franks resident in the Ottoman empire,) and the modifications introduced by subsequent treaties.

By these capitulations and the older treaties, Turkey has surrendered to the foreign legations and consulates in the Ottoman empire general jurisdiction over the subjects of their respective governments in civil and criminal controversies relating to the personal or proprietary rights of each other, or of other Frank residents in the dominions of the Porte, but the provisions of those instruments evidently refer to offences committed, or civil controversies arising, in the Turkish territory.

It does not appear that the Porte had ever stipulated with any European power for the extradition of criminals, or the seizure of fugitives from justice by their governments, in Turkey, until the year 1774, when the treaty of Rutschuck Kainardgi was negotiated with Russia.

The second article of this treaty provides that "if subjects of the two empires, who have committed any capital crime, or been guilty of disobedience or treason, should attempt to conceal themselves or seek asylum in either of the empires, they shall not be received or kept under any pretext, but immediately delivered, or, at least, expelled from the States of the power to which they may have retired." The article proceeds to except fugitives embracing the religion of the country to which they may have fled, and concludes as follows: "Likewise, in case any subjects of the two empires, whether Christian or Mahomedans, who have committed any offence or crime, for whatever cause, shall pass from one empire to the other, they shall, upon requisition, be immediately delivered up."

By virtue of general clauses in subsequent treaties, Austria, as well as the other Frank governments, claims the benefit of this article, and she attempts to convert the alternative stipulation for extradition or expulsion into a grant of the power of seizing on Turkish soil, and by her own ministerial officers, Austrian subjects who have offended against her laws.

The apparent inconsistency between the first and last clauses of this article the former being in the alternative, the latter absolute-is, perhaps, to be explained by a looseness of translation from the Turkish and Russian originals, in the published French version. But, even taking the phraseology of this version as it stands, there can be little doubt that the first or alternative clause was meant to provide for political offences, the latter for ordinary crimes and misdemeanors. The Porte insists on this construction of the treaty, and contends that it is bound to extradition only in case of this latter class of offences; but that with regard to political offenders, it retains the right of delivering them up or expelling them, at its option. It was upon this ground that Turkey refused the surrender of Kossuth and his companions on the demand of Austria in 1849.

The Porte is doubtless right in its construction of the treaty; but, however this may be, the Turkish Sultan is the undisputed lord of the soil, and, by the general law of nations, has exclusive jurisdiction over

all private persons within his territory. Foreign governments and their officers have no other or greater rights or powers within the Turkish territory than such as have been conceded to them by the Porte; and if they claim exceptional rights and privileges, those rights and privileges must be clearly and indisputably established before third parties can be affected with notice of them.

The extent of the powers granted to Austria is a disputed point; but so long as this is lispendens, foreign governments are entitled to disregard disputed claims in derogation of the general principles of international law, and to treat the Porte as still enjoying de jure, what it certainly prima facie possesses, exclusive jurisdiction over all private strangers commorant within its bounds.

Cases of extradition, even of political offenders, have undoubtedly occurred, and it is said that alleged fugitives from justice have been sometimes seized and sent away by the consulates without special authority from the Porte. But though the Ottoman government may possibly have winked at this irregularity in some few cases, it has always denied the right. It is, moreover, the uniform practice to cause the arrest to be made by the consular cavasses, who are always Mussulman subjects of the Porte, commissioned by it as bailiffs, and acting by its authority, though for the time being serving as guards and ministerial officers of the consulate; and it is believed that very few seizures for the purpose of extradition have ever been made by these officers without special authority from their Turkish superiors.

The right of claiming extradition conferred by the treaty of Rutschuck Kainardgi is mutual, and therefore the Turkish legations and consulates have the same powers in this respect over Otttoman subjects in Russia, Austria, England, France, and the United States, that the Frank authorities have over the subjects of their governments in Turkey. The seizure of an Ottoman subject in a foreign territory by brute force, and without legal process, by hired ruffians, upon the mere verbal order of a Turkish consul, and especially after permission to make such seizure had been refused by the local authorities, would never be tolerated for a moment by any Frank government. And there can be no doubt that the arrest and detention of Koszta for participation in the revolution of 1848, was, under the peculiar circumstances of the case, as illegal as would be the seizure of a Greek by a Turkish consul at Vienna, London, or Boston, upon the charge of having treasonably participated in the insurrection which severed Greece from Turkey. Indeed, in any case where there exist treaty stipulations for the extradition of criminals, without special provisions defining the mode in which it shall be effected, the consular authorities might claim the right of seizure and transportation with as much show of justice as in this.

As before noticed, Austria claims the right of seizure not only under the treaty of Rutschuck Kainardgi, but under the provisions of the ancient capitulations. These provisions are extremely vague in their terms, but it has been already observed that they relate solely to causes of action or prosecution arising in the territory of the Porte. It is further to be remarked that they provide, not for the removal of the accused, but for his punishment by the legation or consulate of his own

government; and it is most evident that their object was to confer upon Franks resident in Turkey the privilege of exemption from the jurisdiction of the native tribunals, not to bestow upon their governments the right of forcibly removing them out of the territory and protection of the Porte.

The arrest and detention of Koszta being illegal, the Turkish governor of Smyrna ought to have demanded and enforced his release. The American consul required him to discharge this duty, but he refused to interfere, and left the American and Austrian authorities to settle the matter between themselves as they pleased. All question of the violation of neutral rights was now at an end. Turkey had both abdicated her sovereign right to determine the question of the legality or illegality of the seizure, and even neglected to insist on the ordinary powers and privileges of a neutral territory. To all intents and purposes, the parties in dispute might, from this moment, consider themselves out of the jurisdiction of any third power, and free to act as if they were upon the high seas, or in a port of an uninhabited island.

The Austrian government had repudiated Koszta, declared him expatriated, and denied him its protection as a subject; its civil and military authorities had arrested him, not by any form of regular process, but by brute force, in a territory where they could, under such circumstances, lawfully exercise no power over him, and where they were consequently, for this purpose, not official persons, and the local authorities had denied all redress or interference in the premises. The case, then, is one of illegal and private violence, and Captain Ingraham had the same right to interfere that he would have had if the prisoner had been seized and confined by avowed robbers or other lawless ruffians in a part of the world where no organized government existed.

We come now to the second branch of the inquiry. Had Koszta a right to protection as an American?

His own government had banished, expatriated, and repudiated him, and with the duty of protection had necessarily relinquished the right of control. To Austria he was a stranger, owing her no duties, claiming under or from her no rights. By the established usage which has been recognised in Turkey for centuries, all Franks having no native protection may put themselves under the patronage of any Christian nationality represented at the Porte which consents to receive them, and when so received they are treated in all respects as the subjects of the protecting power. This is every day's practice; and for a long period there has not been a legation at Constantinople, or a Frank consulate in Turkey, which has not had foreign non-naturalized Franks under its full protection and jurisdiction. In some cases these protegés have been counted by hundreds and even thousands. Austria herself has numerous protegés, owing her allegiance neither by birth nor naturalization, and the practice is too well established to admit of its legality being questioned. Upon this ground alone, then, Koszta, being an unprotected Frank, might apply to any Frank nationality for protection, and such nationality might in its discretion accept or refuse him. But Koszta has further rights. He had solemnly declared his intention of becoming an American citizen, and by that act had acquired inchoate rights, the extent of which belongs entirely to us, and to no foreign juris

diction whatever to determine. He had presented himself to the legation at Constantinople and the consulate at Smyrna, been recognised by them as a protegé, and furnished with teskerehs setting forth his American nationality. In these peculiar circumstances, and under the anomalous political relations of Turkey, the American authorities might lawfully allow to Koszta all the privileges which an American citizen can enjoy in that empire; and whatever his mere legal rights as between himself and the American government may have been, it does not lie in the mouth of Austria, which has repudiated all duties, and of course all rights, with respect to him, to question the nature of his relations with us.

What, then, was the duty of Capt. Ingraham? The proposal of the governor of Smyrna to refer the question to his superior at Constantinople was not accompanied with any stipulation that the prisoner should remain at Smyrna to abide the result. It was known that preparations were making to smuggle him on board an Austrian steamer about to sail for Trieste, and there was no doubt that unless the American authorities forthwith interposed, he would be hurried off to meet a certain and ignominious death. Captain Ingraham had no alternative but to submit to this outrage upon the rights of humanity, their violation of the principles of international law, their illegal violence towards one whose rights to American protection had been duly recognised, or to vindicate those rights and the honor of his country by an exercise of the physical force with which his government had intrusted him.

These considerations appear to me to justify the position taken by Mr. Brown, and the conduct of Captain Ingraham, and I trust they will be sustained by the American government in a course of action which has been generally applauded at Constantinople, and which cannot fail to give new force to the hourly increasing respect with which the American government is regarded in the countries of Europe and the East.

Although it has been said, as above noticed, that Koszta was arrested by mistake, there is, nevertheless, much reason to suspect that his seizure was the beginning of a series of arrests, which were intended to embrace all the Hungarian and Italian refugees in the Turkish dominions; and it is believed that the occurrences at Smyrna will have a salutary effect in checking the course of illegal violence and sanguinary persecution to which those unfortunate persons would otherwise have been exposed.

The Porte has made no complaint in regard to the conduct of Capt. Ingraham, the American consul at Smyrna, or the legation; nor has the Austrian internuncio made to this legation any protest or other communication on the subject, since the final demand by Captain Ingraham was known at this capital.

Koszta will, of course, remain for the present in the custody of the French consulate, and I respectfully request instructions from the Department of State as to further steps to be taken in the matter.

Since the above was written, I fearn, from a reliable source, that the Porte intends formally to protest against the seizure of Koszta by the Austrian consulate; and though it is not to be supposed that it will ex

press any approval of the conduct of Captain Ingraham, I have not the slightest reason to believe that it is at all displeased with it. I have the honor to be, sir, your obedient servant,

Hon. W. L. MARCY,

Secretary of State.

GEORGE P. MARSH.

[No. 45.]

SIR :

Mr. Marsh to Mr. Marcy.

[Extract.]

CONSTANTINOPLE, July 11, 1853.

Koszta remains in the custody of the French consulate at Smyrna, and I have nothing to add to the statements of my despatch of July 7th, respecting him.

I have the honor to be, sir, most respectfully, your obedient servant, GEORGE P. MARSH.

The affair of Koszta is still in the same condition as at the date of my last despatch. The Porte has prepared a note for the Austrian internuncio, protesting against the seizure of Koszta, but it has not yet been delivered, and possibly may be suppressed. In the mean time I have had no correspondence with Mr. de Bruck; but if the Porte makes a satisfactory protest, I shall endeavor to procure the release of the prisoner.

I have the honor to be, sir, respectfully, your obedient servant, GEORGE P. MARSH.