[Argentine Republic–Buenos Ayres.]
The struggle between Montevideo (Argentine Republic) and Buenos Ayres led to a variety of questions respecting the position of British subjects in the countries bordering on the River Plate.1
In reply to an inquiry from Mr. Ewart in the House of Commons on the 4th of April, 1845, Sir Robert Peel stated: “It appeared that the general law was this: That the son or grandson of a British subject born abroad was also a British subject. But he could not deny that children born in a foreign state were not also subjects of that state. Such was the law in this country; for the children of foreigners born in Her Majesty’s dominions were British subjects. If the children of British residents at Buenos Ayres were born out of that state, the authorities there had no right to make them Buenos Ayrean subjects. If, however, the children of British subjects were born at Buenos Ayres and continued to reside there, they obtained the rights of citizenship in that place; but with those rights they also had imposed upon them the burdens and duties of citizens, and were liable to the law of Buenos Ayres.”
In December, 1850, Mr. Hood, Mer Majesty’s consul at Buenos Ayres, requested instructions respecting the renewal of certificates of British nationality to natives of Hanover, and to British subjects who, from their occupation or business, were compelled by the local enactments to wear the red waistcoat, hat-band, and ribbon, distinctive of Buenos Ayrean nationality.2[Page 1327]
Lord Palmerston replied, “that if there is a Hanoverian minister or consul at Buenos Ayres he should, of course, take charge of Hanoverian subjects; but if there is no such officer, then Hanoverian subjects may still continue to remain under British protection, but it does not appear to me to be necessary that fresh certificates of British nationality should be granted to such Hanoverians.
“I have further to state to you that a subject of Her Majesty cannot divest himself of his allegiance by submitting to any local enactment compelling him to wear any particular uniform or badge in a foreign country in which he may think proper to reside, and that he does not thereby forfeit his right to be protected by his own government.”
In October, 1857, Mr. Christie reported that the Argentine national Congress had passed a law enabling the sons of aliens born within Argentine territory to choose between Argentine citizenship and that of their fathers.1
Mr. Christie added that he had advised the Buenos Ayrean government, who were forcing the sons of aliens into service, to make a similar law.
At the close of 1857 a large number of British residents at Buenos Ayres having addressed a memorial to the British government complaining of the forced enlistment of the sons of foreigners in the local militia, Lord Palmerston wrote a dispatch to Mr. Christie acknowledging that Her Majesty’s government could not claim such persons as British subjects; but, pointing out the various reasons which could be urged, both on grounds of policy and comity, against such a rigid exercise of military law.2
This dispatch is too long for insertion here, but it well deserves attention in case of an occasion arising in which similar arguments might be called for.
The result of this representation was that the government of Buenos Ayres issued a decree on the 12th of April, 1858.3 The government has resolved to admit substitutes for all the acts of the service of the national guard on the part of the sons of foreigners born in the country, (and who, by our laws, are citizens of it,) who may wish to have them, subject to the regulations which may be necessary and conducive to the good service of the same, it being understood that the substitutes must be foreigners and that their principals will remain subject to all responsibility consequent on all culpable default in the service.”
Some communications took place from 1854 to 1857 between the English and French governments as to the rights of the sons of aliens born in Buenos Ayres to the protection of the country of their fathers’ birth.
In November, 1857, Count Walewski informed Lord Cowley that the French consuls had been instructed to contend that the sons of Frenchmen so situated were entitled to French protection, but that he had carefully considered the whole subject, and “that he must confess he considered the claim untenable.4 The claim had been originally put forward under the tenth article of the first book of the Code Napoléon, which declares ‘que tout enfant né d’un Français en pays étranger est Français and had always been insisted on until now. On the other hand, his excellency found that by the seventeenth article of the same book and code it is declared, ‘que la qualité de Français se perdra par tout établissement fait en pays étranger sans esprit de retour.’ There was therefore an apparent contradiction in the code itself, to remedy which the interference of the legislature would probably be required.”
At a subsequent interview Lord Cowley urged Count Walewski to send to the French consuls the same instructions as had been sent to Mr. Christie.5 The count replied, “that at this moment he was not in a position to send any instructions whatever upon the subject, for that he was still under the pressure of the interpretation put by former governments on the law of France. In stating to me, as he had done some time back, that he considered the position until now taken by France on this question to be untenable, he had only given his own private opinion—an opinion, indeed, which he had expressed officially in council; and he had asked me for the English practice in cases of this nature with the intention of employing it as a further argument with the minister of justice for the necessity of changing the terms of the French law. Until this, however, should be accomplished, he had no choice but to insist, as had his predecessors, that all children born of French subjects abroad are, to all intents and purposes, French subjects also.
“Count Walewski, however, said that as the law would without doubt be altered, he had recommended the Buenos Ayres government to let the matter rest for the present.”
The French law never has been altered.
On the 3d of March, 1860, Mr. Thornton forwarded a copy of a treaty concluded between Spain and the Argentine Confederation, containing among other provisions an article stipulating that the sons of Argentines and Spaniards, born in those respective countries, should be allowed to choose the nationality they may prefer, and suggested that England might claim for the sons of her subjects any exemption from military duty which this treaty might confer on the sons of Spaniards.6[Page 1328]
Lord John Russell replied that it did not appear that any special privilege was secured to Spain by this treaty, which merely adopted, as between the contracting parties, the existing law of each country as to nationality; and that even if any privileges had been given by this treaty to Spaniards, there was no more most-favored-nation clause on this particular point in the British treaty of 1825, which entitled British subjects to claim the benefit of them.1
On the 27th of November, 1861, Lord Russell instructed Mr. Thornton that, if the sons of British subjects wished exemption from military service, they should exercise the option given to them by Argentine law, between Argentine and British nationality.2
In 1862 Mr. Thornton raised the question whether, as the Argentine Provinces and the state of Buenos Ayres were recognized as separate belligerents, the sons of British subjects born within the provinces might not claim exemption from service in Buenos Ayres, and vice versa.
Mr. Thornton was informed that, in the absence of any treaty stipulation, even aliens may under certain circumstances be rendered liable to military service in the country of their domicile, without any violation of international law, and that it must be remembered that the persons in question were not aliens in the Argentine Confederation.3
Moreover, the law of September 29, 1857, seemed to extend to the sons of aliens, wheresoever born, and the provinces might therefore contend that those who had omitted to take advantage of its provisions had thereby constituted themselves Argentines by default.
In August, 1863, Mr. Doria reported that it was proposed to pass a new law by which all persons born within the Argentine Confederation should be declared to be Argentine citizens irrespective of the nationality of their parents.4
Mr. Doria was approved for having protested against a retrospective application being given to this law, in regard to the children of British parents: as, although it appeared that there were no adult persons of this class who had availed themselves of the option given by the law of 1857, to elect to be deemed British subjects, yet there might be others still in their minority whose time for making their election had not yet arrived.
At the same time such a law would not be ultra vires of the Argentine Confederation. It was quite competent to the Confederation, to pass such a new law, though, as an act of comity, it would be preferable to retain the previous one.
- Hansard, vol. lxxix, p. 177.↩
- MS. Volume Nationality Cases. Mr. Hood, No. 48; December 16, 1850. To Mr. Hood, No. 7; March 24, 1851.↩
- Mr. Christie, No. 125; October 28, 1857.↩
- To Mr. Christie, No. 1; January 4, 1858.↩
- Mr. Christie, No. 13; April 15, 1858.↩
- Lord Cowley, No. 625; November 28, 1857.↩
- Lord Cowley, No. 1, 745; December 29, 1857.↩
- Mr. Thornton, No. 25; March, 1860.↩
- To Mr. Thornton, No. 42; July 7, 1860.↩
- To Mr. Thornton, No. 54; November 27, 1861.↩
- To Mr. Thornton. No. 22; May 28, 1862.↩
- Mr. Doria, No. 84; August 28, 1863. To Mr. Doria, No. 38; November 4, 1863.↩