No. 136.
Mr. Flores to Mr. Bayard.
Washington, August 6, 1885. (Received August 7.)
Mr. Secretary of State: The freedom of Don Julio E. Santos having been proclaimed by His Excellency the President of Ecuador, on the 11th of July, by virtue of a general amnesty, which Congress granted at the recommendation of the executive, in favor of almost all who are engaged in the rebellion of 1884 (as I had the pleasure of informing your excellency by my telegram of the 13th ultimo), I feel it my duty of bringing to your excellency’s notice some observations and important facts which my Government has lately transmitted to me [Page 283] concerning the matter now before us of the nationality of the said Mr. Santos.
I shall commence by declaring that my Government has no interest in the nationality mentioned. It is only striving, in view of its friendly relations with the United States, to fix the true meaning of the naturalization treaty now existing between the two Republics, and is trying by a loyal fulfillment of it on its part to carry out its duty in regard to the nation of Ecuador, of preserving for it intact the rights which that former (the treaty) confers upon it, which, as your excellency knows, it would not be possible for the executive to yield without grave responsibility.
Nevertheless, my Government is sincerely convinced that Mr. Santos had settled permanently in Ecuador, and that, consequently, he had resumed his Ecuador citizenship, in conformance with the treaty mentioned.
It bases its conviction on the following facts:
(1) D. Julio E. Santos, since his naturalization in the United States, has resided six years continuously in the country of his birth, which is also that of his parents, of his whole family, and the domicile of them all. He remained there consecutively thrice the length of time which, according to article 3 of the treaty of 1872, “is regarded as the intention to reside in the country, and not to return to that in which he was naturalized.” Therefore, my Government has a perfect right to regard him as prima facie a citizen of Ecuador “until that presumption shall be destroyed by proofs to the contrary.” With what concerns these proofs I shall occupy myself more fully below.
(2) Mr. Santos has owned, and now owns, together with other members of his family, landed property in Ecuador, without, in the six years last past, any notice having been given, as is customary, of the sale thereof, or any known attempt having been made to alienate it.
(3) He has been at the head of a commercial house in Bahia, and although it is stated that he desired to found another in New York since 1881, the fact of his having allowed that plan to rest for four years without carrying it out, indicates either the vagueness and uncertainty of it, or that he could not realize it.
(4) Another decisive circumstance is that in the very letter of his brother D. Santos E. Santos, which was shown me in the Department of State, as referring to that intention, that gentleman wrote from New York, July 17, 1881, “I have resolved to settle here; Julio and Antonio will supply my place in Bahia.” Thus from the very testimony of those interested, and that, too, brought forward by themselves, the opposite of what they aver appears; since, according to it, D. Julio was to remain in Bahia, even in case the house mentioned was established in New York. This letter breaks down the proofs which have been brought to the contrary.
(5) In addition to the real estate and commercial house which D. Julio E. Santos owns in partnership with his brothers, he possesses, likewise, together with them, a dwelling house or residence in Bahia, a permanent abode.
(6) He has accepted from the Government of Ecuador an office, and “only citizens of Ecuador in the exercise of the rights of citizenship can be public functionaries,” according to article 36 of the constitution of Ecuador. D. Julio E. Santos is precisely in the position indicated by the Department of State in its circular of the 14th of October, 1869, concerning the method of resuming original citizenship, even apart from the express provision of the treaty in force, since “a [Page 284] naturalized citizen,” states the said circular, “can resume his original allegiance, and relieve the Government of his adopted country from the obligation of protecting him in the country of his birth, either by returning to the latter with the clear intention of remaining there, or by accepting offices incompatible with his adopted nationality.”
The President’s message of that same year corroborated these views, and described, likewise beforehand, the Santos case in the following words:
They accept offices of honor and trust, which can be filled save by citizens; they reside constantly outside of the, United States; they do not contribute at all to the revenues of the state; they avoid the duties of citizenship, and only have themselves recognized as such to demand protection.
A citizen of the United States, native or naturalized, who fulfills his obligations to his country, has a claim to its entire protection.
While I have any part in the management of public affairs I shall never consent to the compromise of that sacred right by granting it to false or fraudulent claimants.
And previous to the lamented General Grant, the martyr President, in his message of 1863, had called the attention of Congress to similar abuses and to the necessity of putting an end to them:
I have reason to believe that many persons often become citizens of the United States with the simple intention of ridding themselves of the duties which the laws of their own country impose on them, to which they return, after having been naturalized, and where they demand our protection without ever returning to the United States. From this abuse great injuries and serious disputes arise. It is perhaps well to fix a limit beyond which no citizen of the United States, resident abroad, may have the right to demand the interposition of his Government.
And if President Lincoln thus correctly reasoned in regard to citizens living abroad, with how much greater reason would he have been of that opinion in regard to naturalized citizens who return to the country of their birth, and who conspire there against the Government, as appears in the case before us.
(7) Finally, the concluding proof against Mr. Santos is the active part he took in the last revolution, until he was arrested, with arms in his hands, heading a party of rebels, as the official report of Col. D. Modesto Burbano declares, a copy of which I sent in my former note. If he had resolved to come and establish a commercial house in the United States, it is not likely that he would have taken part in a revolution for the purpose of bringing about a change of government in the country which he did not regard as his own, nor as that of his future residence.
From another point of view his conduct would be even more unjustifiable; since, if, believing himself to be an American, he knowingly violated the laws of neutrality of his adopted country, it is hard to comprehend how he can invoke the protection of the latter Government against the country where his cradle was rocked, as was that of his parents, and where the ashes of the latter are lying.
The proclamation of President Grant, dated 22d August, 1870 declares that no American citizen who violates the laws of neutrality can obtain protection from this Government; “they can in no wise obtain any protection from the Government of the United States.”
So that, supposing Mr. Santos a citizen of the United States, the violation of neutrality perfectly proved, as will be shown below deprived him of the right to the protection of his Government.
He was, in this regard, in the position of the American captain, Clark, of whom the minister of the United States, Frederic Hassaurek, commissioner of your excellency’s Government in the Ecuador-American Mixed Commission, which met in Guayaquil in 1864, by virtue of the [Page 285] arbitration convention made there between the plenipotentiaries of our respective Governments on the 21st November, 1862, spoke as follows:
Not only by what he did, but by his manner of doing it, Captain Clark violated the laws of his country, whose intervention and aid he now asks.
He violated the laws of our country, he disregarded solemn duties imposed by treaties, he compromised our neutrality, he rendered himself liable to be tried. Should our Government desire to offer a reward to evil-doers for the violation of its laws and treaties?
With these words of lofty political morality, which exalt the international equity of the American Government, its worthy representative in Ecuador rejected the claims of Clark. Not to accumulate examples of the denial of protection to the violators of American neutrality, even in a case where that violation had been unintentional, I shall confine myself to quoting the remarkable decision of the third adjournment of the Spanish-American Commission at Washington, whose decisions cannot be suspected of bias against the United States, as the last of them caused the protest of the Spanish arbitrator Marquis de Podestad Fornari, on account of which the labors of the said commission remained for a long time suspended.
In the case of the American citizens Charles H. Campbell and Agustin A. Arango, arising out of the capture on the high seas of the brigantine Mary Lowell during the Cuban insurrection, Minister Blanc decided on June 19, 1879, that “as Charles H. Campbell had allowed, voluntarily or through negligence, the brigantine to tall into the hands of the insurgents, the claimants lost their right to the protection of America.”
And if, being undoubtedly Americans, they lost their right to the protection of their Government against a foreign power, what would have been the case when it was a question of their protection against their own native country, even in case there had not been, as there was in the Santos affair, a controversy concerning their nationality?
Mr. Wharton, the present learned examiner of claims in the Department of State, who has reported in favor of Mr. Santos, quotes in his celebrated work on the Conflict of Laws (chapter 11, section 9), article 40 of Westlake’s International Law, which establishes, as a “recognized rule of international law, that the state to which the allegiance has been transferred has not the right to protect the citizen against his former Government, if by a voluntary act he places himself within its jurisdiction.”
This doctrine has been applied by the Secretaries of State most jealous of the right of protection abroad, as Webster and Everett, and even by Marcy himself, who carried further than any one the limits of that protection, which, nevertheless, was refused to Samon Tousig and to Zaunoui against the country of their birth, on the ground that they had voluntarily returned to it.
With how much more certainty would it then have been denied, if that return had been followed by a residence of six years, and been accompanied by the possession of real property, of a mercantile house, of a dwelling, and finally of the accptance of a public office.
In order that D. Julio R. Santos should undertake to defend himself against his native country by American citizenship, he ought at least to present the proof of it demanded by the Department of State, according to which “the right of enjoying the privileges of American citizenship must be proved by a passport legally issued,” as it informed, in its note of 5th October, 1879, Mr. John Jay, American minister in Vienna.
[Page 286]Mr. Santos’s participation in the revolution of November, 1884, is proved not only by the report, which I have already had the honor of inclosing to your excellency, of Col. D. Modesto Burbano—from which it appears that the former was arrested with arms in his hands, at the head of a party of rebels—but also by various statements made during the trial which followed, a résumé of which is inclosed separately, in order not to lengthen too much my present note.
My Government informs me that the said trial has proceeded according to law, and that if it did not progress with the desired rapidity, notwithstanding its repeated warnings to that effect, it was because the large number of rebels comprised in the same indictment rendered of frequent occurrence the declination to serve made by the judges and attorneys of the Government on account of relations of friendship or family with some one of the accused. But the fact is that a separate judgment was not rendered against Santos, but that he was joined in the general judgment rendered against the citizens of Ecuador indicted with him, and with the same facilities and means for defense that they had, although none of the latter has filed a petition or an appeal before Congress, which is now in session—an irrefutable proof that they have been tried according to law.
Therefore, even under the supposition that Mr. Sandos was an American citizen, he would not have any reason to complain, seeing that he had been placed on an equal footing in all respects with the citizens of Ecuador, the only point which article 13 of our treaty with the United States requires.
In regard to the affidavits which were presented in the Department of State, on the 15th of May, in respect to the asserted intention of Mr. Santos to return to the United States, my Government considers that they are lacking in attesting force:
- (1)
- Because they proceed from relations or connections of Mr. Sandos; and
- (2)
- Because the taking of affidavits in Ecuador ought to be in accordance with the laws thereof, which demand the citation of the opposite party. If the Government attorney of Ecuador had been cited, he would have had the examination of witnesses in his power, and the other legal means for establishing the truth.
Among the affiants there are seven of the Santos family itself, as the very name they bear proves in regard to five of them. Two others, though not bearing the name, are likewise relatives of his. One, D. Rodolfo Halstead, is married to a sister of the Messrs. Santos, and D. F. C. Centeno to their relative. Another affiant, D. Cumucindo Vitlassis, has been an accomplice in the same crime of rebellion. And, as far as concerned, those who have made affidavit in the United States, no one has taken the trouble to conceal his manifest partiality in favor of D. Julio.
Nor has any one brought forward the latter’s letters, in which his intention of returning is clearly set forth. And, even if they should be produced, if by means of them the requirements of the proof which the existing treaty demands should be satisfied, the latter (the treaty) would be of no effect, since it would be in the power of every naturalized person to easily elude it, by merely writing a few letters in which he should declare his intention of returning to his adopted country.
As a result the object of the treaty, which was to put an end to abuses of naturalization, would be prostrated completely, the said abuses having been indicated before its ratification by two illustrious Presidents, [Page 287] whom their country reveres, and by a distinguished predecessor of your excellency, likewise held in affectionate remembrance.
If Mr. Santos had produced satisfactory proofs of having intended to settle in the United States my Government would have been ready to recognize him as an American citizen, but it is firm in its conviction that he has not produced them.
In the opinion of my Government, the proofs which its treaty of naturalization with the United States demands, ought not to consist in mere “verbal expressions which indicate the intention of a change,” since, as Wharton, the authority quoted, very correctly points out, these “are, if not accompanied by the actual change of residence, so vague, and frequently uttered so carelessly, that they deserve very little faith.” (Conflict of Laws, chap, ii, sec. 63; Phillimore, iv, 156; cases of Lord Somerville, Harvard College, Anderson against Lamenville, Halowell against Saco, and that of the Venus.) According to Story “the intention without the actual change of residence, has no significance.”
It has been, without doubt, for that reason that in Massachusetts the declarations of persons whose domicile is in question have been rejected, the rejection being grounded on the fact that they do not constitute part of the res gestœ, which are admissible as testimony. And although Story thinks they are themselves admissible testimony touching the intention of residing in a certain place, he lays down as a condition for this that they must have been made before the controversy arose. (Conflict of Laws, 45, 46, chap. 3.) Moreover he does not refer to the original domicile (domicile of birth), which he admits “is easily resumed,” according to the various decisions of the judiciary of the United States from the case of Catlin Gladding to that of Francis (4 Mason, 308; 8 Cranch, 335). And even when treating of the domicile in a foreign country Story considers it as such domicile, despite of any vague intention of returning at some future time. All the more so when it is a question of the original domicile, in regard to which there cannot be a clearer commentary than that made in treaties of naturalization by the same Secretary of State with whom I had the honor of signing ours.
His words are as follows:
The adoption in many treaties of the period of two years as that in which the intention of not returning to the United States may be presumed to exist on the part of the naturalized citizen who has returned to his native country, indicates that, although the principle upon which is sustained the right of protection to naturalized citizens is the same as that which operates in respect to native-horn citizens; nevertheless, there is taken into account the strong propensity to resume the original nationality on the part of one, who, having emigrated from his country, finds afterwards the attractiveness of the friendships of youth and the bonds of family affection.
And the tendency to resume the original domicile is more powerful even than that to resume the nationality, as is proved by the many similar cases to that of Santos which have been laid before the various mixed commissions sitting in Washington. It is, then, to arrest that tendency that the treaties of naturalization have been signed.
My Government considers that the admission of the testimony ought to be subjected to the principles which regulate controversies between nations, in accordance with the opinion of Judge Strong, arbitrator between the United States and Hayti, in the case of Pelletier, April 13, of this year, and that, if there is properly room for more liberty in this respect in international law than in the civil, the admission of testimony ought to be limited to that of the second degree, as the judge mentioned limited it. Since for the rest, “as far as concerns the capacity of the witnesses and the validity of the testimony, that ought to be decided [Page 288] by the law of the country where the question arises,” conformable to the decision of Lord Brougham, quoted by Story, 3, 634, in chap, xviii.
Faithful to American principles my Government adheres to that formulated by the judiciary of the United States, that “residence is the origin of domicile that a long residence is proof of intention.” (Johnson v. Falconer, 2 Paine, 602, Van Ness, 1), and that “as the nationality is easily resumed, fewer circumstances are required to constitute the domicile in the case of a native-born citizen than to fix that character on the native of another country,” in accordance with the teaching of Wheaton (Int. Law, par. iv, sec. 324), a doctrine which another more modern American treatise extends by the following rule:
The proof that one declares that he has abandoned his native county ought to be clearer and more satisfactory than what would be required if it were a question of foreign nationality. Since, while the original domicile is easily resumed, the same is not the case with the foreign or acquired one. (A Treatise on Citizenship, p. 101, Alexander P. Morse.)
And so Santos’s domicile in Ecuador, and his consequent resumption of his original nationality, have resulted not only from the treaty, and from the series of facts mentioned in connection with it, but also from the very declaration of the executive power of the United States, from the judgments of its tribunals, and the American rules and practices above quoted, all which have served my Government as a rule and an example in this matter.
In conclusion, my Government has thought that in the matter of a treaty to which Ecuador was a party, any doubt concerning its interpretation ought to be settled by common accord, and that if this were impossible, the honorable example set by the United States themselves ought to be followed, namely, of submitting the disputed points to arbitration, as so many cases of various kinds have been submitted to the mixed commissions formed in Washington, in Lima, Guayaquil, Caracas, and in Ginebra. My Government has been not the less able to hope to find itself entirely in accord with your excellency’s in this matter, since it is the mere application of the American policy.
Having laid before your excellency the facts and the foregoing remarks which show the honest purpose with which my Government has proceeded as well as the strong desire which animates it, and of which it has given recent and undeniable testimony, to remove every ground of controversy with the Government of the United States and rather to strengthen the good relations which happily subsist between the two Republics, I take pleasure in renewing the assurance of my highest consideration, and I have the honor to be your excellency’s very obedient and very humble servant,