tria, if an offer of extradition is declined by the offending state, punishes and relegates the criminal.*

From this exposition it is evident (1.) that states are far from universally admitting the territoriality of crime; (2.) that those who go farthest in carrying out this principle depart from it in some cases, and are inconsistent with themselves. To this we may add (3.) that the principle is not founded on reason, and (4.) that, as intercourse grows closer in the world, nations will the more readily aid general justice. Comp. § 20 b.

Criminals escap

country.

dition.

$ 79.

The considerations which affect the question, What a government ought to do in regard to fugitives from ing into a foreign foreign justice, who have escaped into its territory? are chiefly these: First, that no nation is held to be bound to administer the laws of another, or to aid in administering them; secondly, that it is for the interest of general justice that criminals should not avoid punishment by finding a refuge on another soil, not to say that the country harboring them may add thereby to the number of its worthless inhabitants; and, thirdly, that the definitions of crime vary so much in different nations, that a consent to deliver up all accused fugitives to the authorities at home for trial, would often violate the feeling of justice or of humanity. Some have contended for an absolute obligation to deliver up fugitives from justice; but (1.) The number of treaties of extradition, shows that no such obligation is generally recognized. Else what need of treaties giving consent to such extradition, and specifying crimes for which the fugitive should be delivered up? (2.) It may be said that the analogy of private international law requires it. If a nation opens its courts for the claim of one foreigner on another, and in so doing applies foreign law to the case, why should it not open them for claims of a foreign government against violators of its laws? But the analogy fails. In private claims, the basis of right is admitted

* These facts are drawn from an essay on the doctrine of asylum, by R. v. Mohl, in his Staatsr. Völkerr. u. Politik, vol. I. 644-649.

with a general agreement by the law of all states. In public prosecution of criminals, different views of right are taken, as it respect offences, method of trial, and degree of punishment. There is a class of persons, particularly,-political offenders,whom the world often regards as unfortunate rather than guilty, who may make useful inhabitants of another land, having sinned not against the morality of the universe, but against the absurd laws, it may be, of an antiquated political system. It is chiefly on their account that (3.) nations, the most humane, or the most jealous of their own sovereignty, have felt it to be base and wrong to send back voluntary exiles to their native land.*

We conclude that there is a limited obligation of nations to assist each other's criminal justice, which only special treaties, expressing the views of the parties at the time, can define. Of such treaties there is no lack. The United States and Great Britain entered into one in 1842, providing for extradition in cases of murder, assault with intent to murder, piracy, arson, robbery, forgery, and utterance of forged paper. Another between the United States and France, made in 1843, relates to charges for murder, attempts to murder, rape, forgery, arson, and such embezzlement by public officers, as subjects to infamous punishment in France, to which subsequently robbery and burglary were added. Quite recently, in 1859, an additional article includes persons charged as principals, accessories, or accomplices, in forging, or knowingly passing or putting into circulation counterfeit coin or bank notes, or other paper currency as money, with intent to defraud, and also embezzlement by any salaried persons, to the detriment of their employers, which subjects to infamous punishment. In both treaties it is required that the evidence of criminality must be such as to justify apprehension and commitment, according to the law of the place of the accused person's refuge.

The case of political refugees has some points peculiar to

* The feeling at Athens is shown in the very instructive oration of Demosthenes against Aristocrates, § 85, Bekker, κατὰ τὸν κοινὸν ἁπάντων ἀνθρώπων νόμον, ὅς κεῖται τὸν φεύγοντα δέχεσθαι.

itself. A nation, as we have seen, has a right to harbor 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.

International copy-right, and

$ 80.

Have

A peculiar question touching international law is presented by the rights of authors and inventors. these such an absolute right of property that the patent-right. book or machine cannot be reproduced in a foreign land without their consent, the book not even in a foreign translation, and if so, ought not the patent to be perpetual every where? These are questions which have been considered seriously only in more recent times; about which, therefore, there is no agreement of nations. But many treaties in modern times have provided protection to such persons, and this protection for a limited time is likely to become universal, whereever applied for.*

*For the law of copy-right comp. O. Wächter, das Verlagsrecht, Stuttgart, 1858, esp. pp. 741–832; P. Burke, the law of international copy-right between England and France, Lond. 1852. The leading principles of the laws and treaties thus far made are reciprocity between the states concerned, a limited term of protection, and that the right of translation belongs to the author or his assigns. In this country, no international law or treaty relating to copy-right as yet exists. The foreigner, although by the admission of all jurists having a property to his work, is unprotected.

§ 81.

APPENDIX

Case of Koszta.

A CASE, remarkable as involving several points of international law, relating to the condition of aliens 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."* 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, then in port, prepared to resort to force, unless he was 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 offence.

It was said that the exterritorial consular jurisdiction mentioned below (§ 96,) 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, then, in seizing him, committed an offence

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

against the sovereignty of Turkey, and so, an offence against the law of nations.

2. Was he an Austrian subject? Austrian nationality ceases according to what is said in § 66, on the authority of M. Fœlix, 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. 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 fulfil 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, clearly lay on the United States. How Austria could have dealt with him within her own limits is another question.