sian who, having quitted Russian territory and become a citizen of another state, may afterward return to Russia.

"This claim is different from that put forth by some governments for the completion of military duty fully accruing while the subject is within their jurisdiction, and actually left unfulfilled. It is, for example, claimed that a subject who leaves the country when called upon to serve in the army, and becomes a citizen or subject of another state, may, if he returns to the former jurisdiction while yet of age for military duty, be compelled to serve out his term. This rule appears harsh to us, and yet it goes no further, as a matter of fact, than a contention that an obligation of service accruing and unpaid while the subject is a resident of the country, continues, and is to be extinguished in kind by performance of the alleged defaulted service.

"But, harsh as it is, it is wholly different from the infliction of vindictive punishment, as, for instance, exile for the constructive evasion of an inchoate obligation. To exact the fulfillment of an existing obligation is one thing; to inflict corporal punishment for not recognizing a future contingent obligation is another."

KOSZTA'S CASE.

(Cockburn's Nationality, 118.)

Status of a foreigner who has "declared his intention" to become a citizen of the United States, and who has a domicil in the country, when he is temporarily out of their jurisdiction.

Koszta was a Hungarian, and one of the refugees of 1848-9. IIe went to Turkey, where he was arrested and imprisoned at Kutahieh, but released on condition of leaving the country. He went to the United States and made the usual declaration of an intention to become naturalized. In 1853 he returned to Turkey, and went to Smyrna on commercial business, and there obtained from the United States' Consul a traveling pass, stating that he was entitled to American protection. On the 21st of June, 1853, he was seized by some persons in the pay of the Austrian Consulate and taken out into the harbor in a boat; he was then thrown into the sea, and was picked up by a boat from the Austrian man-of-war "Hussar." The United States Consul went on board to remonstrate, but the Captain of the "Hussar" persisted in retaining Koszta. Thereupon the United States' Chargé d'Affaires at Constantinople requested

the Captain of the United States' ship of war "St. Louis" to demand Koszta's release, and, if necessary, to have recourse to force.

The "St. Louis " accordingly went to Smyrna, and the Captain in pursuance of his instructions, stated to the Commander of the "Hussar" that unless Koszta was at once delivered to him he should take him by force of arms.

As a conflict between the two ships of war would have been attended with great danger to the shipping in the port and to the town, the French Consul offered his mediation, and Koszta was then given over to his care to be kept until the decision of the respective governments was ascertained.

On the 29th of August, 1853, the Austrian Chargé d'Affaires at Washington presented a formal remonstrance to the United States Government, protesting against the claim of the United States to afford protection to Koszta, and calling on them to disavow the conduct of their agents and to grant reparation for the insult offered to the Austrian flag.

Mr. Marcy replied on the 26th of September, 1853, contending, first, for the general right of every citizen or subject, "having faithfully performed the past and present duties resulting from his relation to the Sovereign Power, to release himself at any time from the obligation of allegiance, freely quit the land of his birth and adoption, seek through all countries a home, or select anywhere that which offers him the fairest prospect of happiness for himself and his posterity;" secondly, that Koszta was not an Austrian subject, as by a "decree of the Emperor of Austria of the 24th of March, 1832, Austrian subjects leaving the dominions of the Emperor without permission of the magistrate and a release of Austrian citizenship, and with an intention never to return, become unlawful emigrants,' and lose all their civil and political rights at home." Thirdly, Mr. Marcy put forward the somewhat startling proposition that although Koszta had not yet been naturalized and become a citizen of the United States, yet having become domiciled in the latter country, he was entitled to be treated in all respects as a citizen of the United States. In support of this proposition Mr. Marcy writes as follows:

"It is an error to assume that a nation can properly extend its protection only to native-born or naturalized citizens. This is not the doctrine of international law, nor is the practice of nations circumscribed within such narrow limits. This law does not, as has been before remarked, complicate questions of this nature by respect for municipal codes. In relation to this subject it has clear and distinct rules of its own. It gives the national character of the country, not only to native-born and naturalized citizens, but to all residents

in it who are there with, or even without, an intention to become citizens, provided they have a domicile therein. Foreigners may, and often do, acquire a domicile in a country, even though they have entered it with the avowed intention not to become naturalized citizens, but to return to their native land at some remote and uncertain period, and whenever they acquire a domicile, international law at once impresses upon them the national character of the country of that domicile.

"It is a maxim of international law that domicile confers a national character; it does not allow any one who has a domicile to decline the national character thus conferred; it forces it upon him often very much against his will, and to his great detriment. International law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen. It concedes to every country the right to protect any and all who may be clothed with its nationality."

TOUSIG'S CASE, 1854.

(Lawrence's Wheaton, Ed. of 1863, 929.)

A foreigner who has "declared his intention" to become a citizen of the United States is not entitled to their protection if he returns to his native country.

Tousig, a native of Austria, had acquired a domicile in the United States, but had not become naturalized. He returned to Austria, with an American state passport, and was arrested on the charge of offenses committed before leaving Austria. He appealed to the United States Minister for protection, and the latter having brought the case before the state department, Mr. Marcy, on the 10th January, 1854, writes to Mr. Jackson, Chargé d'Affaires at Vienna, as follows:

"I have carefully examined your despatches relating to the case of Simon Tousig, and regret to find that it is one which will not authorize a more effective interference than that which you have already made in his behalf. It is true he left this country with a passport issued from this department; but as he was neither a native-born nor naturalized citizen, he was not entitled to it. It is only to citizen. that passports are issued.

"Assuming all that could possibly belong to Tousig's case,-that

he had a domicile here and was actually clothed with the nationality of the United States, there is a feature in it which distinguishes it from that of Koszta. Tousig voluntarily returned to Austria, and placed himself within the reach of her municipal laws. He went by his free act under their jurisdiction, and thereby subjected himself to them. If he had incurred penalties or assumed duties while under these laws, he might have expected they would be enforced against. him, and should have known that the new political relation he had acquired, if indeed he had acquired any, could not operate as a release from these penalties. Having been once subject to the municipal laws of Austria, and while under her jurisdiction violated these laws, his withdrawal from that jurisdiction and acquiring a different national character would not exempt him from their operation whenever he again chose to place himself under them. Every nation, whenever its laws are violated by any one owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the penalities incurred upon the transgressor, if found within its jurisdiction. The case is not altered by the character of the laws, unless they are in derogation of the well-established international code. No nation has a right to supervise the municipal code of another nation, or claim that its citizens or subjects shall be exempted from the operation of such code, if they have voluntarily placed themselves under it.

"The character of the municipal laws of one country does not furnish a just ground for other states to interfere with the execution of these laws, even upon their own citizens, when they have gone into that country and subjected themselves to its jurisdiction. If this country can rightfully claim no such exemption for its native-born or naturalized citizens, surely it cannot claim it for those who have at most but inchoate rights of citizens.

"The principle does not at all interfere with the right of any state to protect its citizens, or those entitled to its protection, when abroad, from wrongs and injuries,—from arbitrary acts of oppression or deprivation of property, as contradistinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves. I do not discover any principle in virtue of which this government can claim, as a matter of right, the release of Tousig.

“He has voluntarily placed himself within the jurisdiction of the laws of Austria, and is suffering, as appears by the case as you present it, for the acts he had done in violation of those laws while he was an Austrian subject."

SECTION 25.-STATUS OF AMERICAN INDIANS.

ELK v. WILKINS.

SUPREME COURT OF THE UNITED STATES, 1884.

(112 United States Reports, 94.)

This was an action brought by an Indian in the Circuit Court of the United States for the District of Nebraska, against the registrar of one of the wards of the city of Omaha, for refusing to register him as a qualified voter therein.

Mr. Justice GRAY delivered the opinion of the court, extracts from which are as follows:

·

«*** The question then, is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment to the Constitution. "Under the Constitution of the United States, as originally established, Indians not taxed,' were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states; and Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the States of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the President and Senate, or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage resembling that of a ward to his guardian. Indians and their property exempt from taxation by treaty or statute of the United States, could not be taxed by any State. General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. Con