No. 84.
Mr. Hall to
Mr. Bayard.
Legation of
the United States,
Guatemala, April 11, 1887.
(Received May 5.)
No. 641.]
Sir: With reference to your instructions, No. 409
and No. 429, of the 27th November, 1886, and the 16th February, and to my
dispatches numbered 574, 605, and 627, the latter dated the 8th ultimo, I
beg leave to invite your attention to the inclosed copies and translation of
correspondence with the minister of foreign affairs of Salvador, in relation
to the recent law concerning citizenship and the status of foreigners in
that Republic.
The minister’s communication dated the 28th ultimo, in answer to mine of the
7th January last, is a general denial that the law in question conflicts
with the established rules of international intercourse, or that it leaves
to the Salvadorian authorities to decide upon the nationality of a
foreigner. The object of the law, he contends, is that the
[Page 111]
Government may be informed as to number of
foreigners in the country and their domiciles, with a view to afford them
due protection and to prevent any acts against them that might give rise to
diplomatic intervention. He wishes it to be understood that the law is for
the benefit of foreigners, and is not intended to restrict their movements
and operations, and that Salvador does not ignore the right of foreign
Governments to intervene in behalf of their citizens and subjects. In a
note, addressed to one of my colleagues, he states that the object of the
law referred to is to put a stop to the unjust claims of foreign
Governments.
In regard to Articles 39, 40, and 41, which assume to define what is to be
understood by a denial of justice and to impose restrictions upon foreigners
in their recourse to their own Governments, he also denies that those
provisions are in opposition to international rights.
I find his communication neither clear nor consistent, and in parts
unintelligible. He concludes, however, with the information that the subject
will be brought to the notice of the legislature of Salvador at its next
session, with the object, it may be supposed, of proposing some amendments
to the law. In the mean time I learn that the Government has taken no steps
to carry out the law.
* * * * * * *
I have, etc.,
[Inclosure 1 in No. 641.]
Mr. Hall to Señor
Delgado.
Guatemala, January 7,
1887.
Mr. Minister: In the official newspaper of the
Government of Salvador, of the 1st of October, is published the law of
the 29th of September last, in relation to the general subject of
citizenship and to the status of foreigners in that Republic. Having
forwarded a copy of the law to the Department of State of my Government,
I have been instructed to respectfully invite the attention of your
excellency to some of its provisions which raise important questions of
international right and whose enforcement would give rise to continual
and probably grave controversies. Such has been the result of the
attempts elsewhere than Salvador to enforce similar regulations which
operate as a restriction upon the exercise by States and by citizens of
their relative rights and duties according to the generally accepted
rules of international intercourse.
The matriculation of foreigners, as defined in Article 21, is an
inscription of their names and nationalities in a book kept for that
purpose in the department for foreign affairs. In order to be so
inscribed they must produce to that department certain evidence
prescribed by the laws of the Republic, of their right to the national
status so claimed. If the requisite evidence be exhibited, the name and
nationality of the applicant are registered, and in proof of this he is
given a certificate of matriculation, which, however, is only prima facie evidence of the national status
(Article 24), but without this certificate no authority nor public
functionary of Salvador is permitted to recognize a foreigners
nationality (Article 26).
By Article 28, Chapter III, it is provided that matriculation concedes
privileges, and imposes special obligations, called by the laws of the
Republic “Derechos de extrangeria.” These, as stated in Article 29, are
as follows:
- (1)
- El de invocar el extrangero los tratados y convenciones
existentes entre el Salvador y su respectiva nacion;
- (2)
- El de recurrir á la proteccion de su propio soberano por la
via diplomatica; y
- (3)
- El beneficio de reciprocidad.*
[Page 112]
Unless a foreigner possesses a certificate of matriculation, no authority
nor public functionary of Salvador, as has been seen, is permitted to
concede to him any of these rights; and in Article 27 it is further
provided that the certificate of matriculation shall not operate
retroactively upon a claim of right arising anterior to the date of
matriculation. Thus the object and purport of the law in question is to
make the enjoyment and the assertion by a foreigner in Salvador of the
consequent rights and privileges of his national character, whether
guarantied by treaty or secured by the general rules of international
law, conditional upon his possession of a document prescribed by the
municipal law as the proper proof of his citizenship.
In order to appreciate the significance of such a requirement, it is only
necessary to consider that if admitted its effect would be to leave the
question of the national status of a foreigner wholly to the
determination of the Salvadorian authorities, and that in the event of
his failure to exhibit such proof of citizenship as they may deem
sufficient, his right to claim the protection of his Government would be
lost. On the other hand, the right of his Government to interpose in his
behalf would be destroyed, for to deny to a foreigner recourse to his
Government by necessary implication questions and denies the right of
that Government to intervene. Thus by making the compliance of a
foreigner with a municipal regulation a condition precedent to the
recognition of his national character the Salvadorian Government not
only assumes to be the sole judge of his status, but also imposes upon
him as the penalty of noncompliance a virtual loss of citizenship. The
effect of the law in question is to invest the officials of that
Government with sole discretion and exclusive authority to determine
conclusively all questions of American citizenship within their
territory. This is in contravention of treaty right and the rules of
international law and usage, and would be in abnegation of its sovereign
duty towards its citizens in foreign lands, to which the Government of
the United States has never given its assent.
It may be in place to advert to the fact that some of the provisions of
the law referred to were substantially embodied in the code of Mexico;
but Mexico, guided by the experience of an ample trial of her law of
matriculation, modified it in June last by the repeal of the provisions
which made the matriculation of foreigners compulsory and a condition of
the exercise of the rights of appeal to their Governments.
Articles 39, 40, and 41 of the law in question purport to define the
conditions under which diplomatic intervention is permitted in behalf of
foreigners in Salvador whose national character is admitted. I am
authorized to say that my Government is unable to accept the principle
of any of these articles without important qualifications.
Article 39 provides that only in the event of a denial, or a voluntary
retardation of justice, and after having resorted in vain to all the
ordinary remedies afforded by the laws of the Republic, may foreigners
appeal to their Governments.
Article 40 defines what is meant by a denial of justice, and declares
that such denial exists only when the judicial authority refuses to
decide the matter before him, and that consequently the fact that a
judge may have pronounced a decision, although it may be said to be
iniquitous or in express violation of law, can not afford a ground for
resort to the diplomatic channel.
Article 41 declares that delay in the administration of justice is not to
be considered voluntary when the judge alleges any legal or physical
impediment which lie is unable to remove.
The foregoing comment on the law of matriculation appears to be equally
applicable to Articles 39, 40, and 41; that the denial to the foreigner
of the right of appeal to his Government necessarily implies the denial
of the right of his Government to intervene, and as this denial is based
upon the decision of the tribunals of Salvador, the judgment of those
tribunals are made internationally binding as to all questions of
municipal or of international law coming before them.
It is admitted as a general rule of international law that a denial of
justice is the proper ground of diplomatic intervention. This, however,
is merely the statement of a principle, and leaves the question in each
case, whether there has been such denial, to be determined by the
application of the rules of international law. By Articles 39, 40, and
41, as understood by the Department of State of my Government, the
Government of your excellency would avoid this question, especially
where the act complained of was committed by the authorities of the
Republic in pursuance of its laws. This doctrine is new to my
Government, which has maintained, in its treaties and otherwise, as a
settled principle of international law, the rule that in eases of
violation of international right by the authorities of a state in
pursuance of municipal regulations, the final decision of the national
tribunals sustaining the action of the authorities is a consummation of
the wrong complained of and therefore constitutes no bar nor impediment
to international discussion.
I trust that your excellency will be pleased to accept those
observations, which I have the honor to communicate by instruction of my
Government, in the same friendly spirit in which they are offered, and
in the interest of that complete understanding and friendly intercourse
which ought to subsist between the Republics of this continent.
I have, etc.,
[Page 113]
[Inclosure 2 in No.
641.—Translation.]
Señor Delgado to
Mr. Hall.
Department of Foreign Relations of Salvador,
San Salvador, March 28, 1887.
Mr. Minister: Opportunely I had the honor to
receive your esteemed note, dated 7th January last, in which you are
pleased to communicate to me that having sent to your Government a copy
of the law of the 29th of September last, relating to aliens, you have
received instructions to call the attention of my Government to some of
its provisions, which raise important questions of international right,
and whose enforcement would give rise to continual and probably grave
controversies.
Among other provisions you cite, in the first place, Articles 24, 26, 27,
and 29, which treat of the obligation of all foreigners to matriculate
themselves in the department of foreign relations, and of the
consequences of a failure to comply with that obligation. You find two
objections to make against these provisions:
- (1)
- That their effect would be to leave the question of the
national status of a foreigner wholly to the determination of
the authorities of Salvador; and
- (2)
- That the right of foreign Governments to interpose in behalf
of their subjects would be destroyed, as in your opinion to deny
to a foreigner the right of recourse to his Government, by
necessary implication questions or denies the right of that
Government to intervene.
You add that in imposing upon a foreigner the obligation of matriculation
as an indispensable condition to enable him to solicit the protection of
his Government, that of Salvador assumes the right not only to be the
sole judge of the nationality of a foreigner, but also that of imposing
upon him, as the penalty of non-compliance, a virtual loss of
citizenship.
You consider that these provisions are contrary to the treaties and to
the rules of international intercourse and usage, and that to admit them
the Government of the United States would renounce its sovereign duty
towards its citizens in foreign lands, to which it has never given its
assent.
Upon this particular point you consider it opportune to note the fact
that some of the provisions of the law referred to are substantially
incorporated in the code of Mexico, and that that Republic, guided by
the experience of a long trial of her law of matriculation, modified it
in June last, revoking those provisions that made matriculation
obligatory and a condition of the exercise of the right that foreigners
have to appeal to their Governments.
Articles 39, 40, and 41 are other provisions of the law upon which you
make some observations. In these articles it is declared that foreigners
can not have recourse to their Governments except in cases of a
retardation or voluntary denial of justice, and after having exhausted
in vain all the ordinary recourses conceded by the laws of the Republic,
it is established also that there is a denial of justice when the
judicial authority refuses to determine a matter submitted to him for
his decision; but not when a decision or sentence may be pronounced,
although it may be alleged that the resolution is iniquitous or given
against express law. Upon this point you make objections analogous to
those previously set forth. You say that the denial to foreigners of the
right of appeal to their Governments necessarily implies the denial of
the right of the latter to intervene; that by the acceptance of this
doctrine the sentences of our tribunals would be internationally binding
as to all questions of municipal or international law presented to them;
that by the Articles 39, 40, and 41, as understood by your Government’s
Department of State, my Government would evade in each particular case
the question of determining by the rules of international law whether
there has been a denial of justice, and that your Government has always
maintained the principle that in cases of violation of international
right by the authorities of a state in pursuance of municipal laws, the
final decision of the tribunals sustaining the action of the authorities
is a consummation of the wrong complained of, and therefore constitutes
no bar nor impediment to international discussion.
You conclude by declaring that the foregoing observations have been made
in the interest of that complete understanding and of the friendly
relations that ought to subsist between the peoples of this continent,
and expressing the hope that my Government will accept them in the same
friendly spirit that has inspired them.
In reply it is gratifying to me to declare to you that my Government,
ever animated by the same friendly sentiments as is that of the United
States, will do everything in its power to prevent the application of
the law relating to foreigners, giving rise to any disagreement with
friendly nations, and especially with the one that you so worthily
represent.
You will now permit me to make a few slight observations in reply to
those that I have referred to.
[Page 114]
In the first place, I do not believe that the fact of imposing upon
foreigners the obligation to matriculate leaves the determination of
their nationality to the arbitrament of the Salvadorian authorities.
According to Article 22 of the law referred to the foreigner who presents
a certification of the respective diplomatic or consular agent
accredited in the Republic, in which it is set forth that the party
interested is a native of the country represented by such agent, or the
authenticated passport upon which the applicant has entered the
Republic, or the certificate of naturalization, also duly authenticated,
has the right to be inscribed in the books of matriculates. From this
provision it is evident that it is exclusively the authorities of the
country to which the foreigner or the diplomatic or consular agent in
Salvador belongs who decide upon the question of nationality or
citizenship. The question once decided by those authorities or agents
and either of the documents just mentioned issued in favor of the
foreigner, the minister for foreign relations is under the obligation to
matriculate him and to give him the corresponding certificate thereof I
do not perceive, therefore, in what sense it can be said that the
question of the nationality of foreigners depends upon the decision of
the Salvadorian authorities.
The matriculation has for its object that the Government may be informed
of the number of foreign residents in the country and of their
respective domiciles in order that it may afford them due protection,
and to avoid any act being committed against them which might give rise
to diplomatic intervention. The foreigner who does not comply with the
obligation to matriculate, voluntarily renounces the benefits to be
derived therefrom; this in no wise is opposed to the rules of
international law nor to the stipulations of treaties. On the other
hand, Salvador recognizes and has always recognized the principle that a
law can not alter in the least the provisions of treaties, and for the
same reason if those with the United States or with any other friendly
nation are opposed to the fulfillment of any of the articles of the law
relating to foreigners, such article will not be enforced as regards
that nation, and will be applied only to the citizens of the states with
which we have no such treaties.
The first objection in regard to the matriculation of foreigners having
been answered, the second objection likewise disappears. Salvador does
not nor can not ignore the right of foreign Governments to intervene in
behalf of their subjects residing in the Republic; it has done nothing
more in the law referred to than to fix a condition upon which
foreigners who wish to reside in the country may enjoy the so-called
rights of alienage, among which is that of recourse to their respective
Governments, as that condition is legitimate and expedient, and depends
besides upon the free-will of the foreigner. Salvador in establishing it
has made use of the natural rights that all peoples of the world have to
impose just conditions upon foreigners who wish to reside in their
territory. The foreigner who enters Salvador should know that to enjoy
certain privileges he is under the obligation to matriculate; if he does
not, it is he who tacitly renounces the right to invoke the protection
of his Government; it is not the Government which renounces the right to
protect him.
Coming now to the matter in which, according to this law, foreigners may
appeal to their Governments on account of a denial of justice, I must
declare to you that, in the judgment of this department, the said law
refers only to claims that have their origin in acts of the judicial
authorities, and not to claims that are founded upon an anterior act of
the gubernative authorities. If in a civil or criminal suit a final
sentence is pronounced, such decision carries with it, according to our
laws, the validity of a thing Judged; it must be complied with and
executed against any person whomsoever, and the only recourse that
remains to the party who considers himself aggrieved is to bring an
action against the judge who may have maliciously pronounced an unjust
sentence.
If the judicial resolution is not final, there remains always the
ordinary recourses against it. For that reason the law referred to says
that when a judicial matter has been decided by a decree or sentence
there can be no diplomatic reclamation, although it may be alleged that
the decision is iniquitous or manifestly unjust. This provision is in no
way opposed to the principles of international law. You know very well
that the sovereignty of a state necessarily implies the right to make
laws, to interpret them, and to apply them as cases may occur. If any
nation arrogates the right to revise the sentences pronounced by the
tribunals of another nation, and of deciding whether they are just or
unjust, the latter would not be sovereign in reality, inasmuch as in the
exercise of one of its principal functions of sovereignty it would be
dependent upon the former.
For this reason our law relating to foreigners declares that there is no
denial of justice except when the tribunals voluntarily retard the
decision of matters submitted to their cognizance or refuse absolutely
to decide upon them. In case of the claim being based not upon the
sentence itself, but upon an act anterior to it, I agree with you that a
judicial decision can not debar the further prosecution of the claim;
but I believe that in the law relating to foreigners there is no
provision that establishes the contrary.
[Page 115]
Notwithstanding the foregoing, my Government will bring your esteemed
note to the notice of the national assembly at its next meeting, so that
that high body, taking into consideration the observations to which I
have had the pleasure to refer, may be pleased to resolve whatever may
be expedient.
I improve, etc.,
