File No. 8476.
Chargé Janes to the
Secretary of State.
American Legation,
Santiago,August 5,
1907.
No. 162.]
Sir: I have the honor to transmit herewith a
copy of an interesting decision handed down on the 18th of July by the
court of appeals of Santiago. In this it is decided that a child born in
Chile of Spanish parents is not necessarily a Chilean citizen, and that
therefore the laws prescribing military service for all citizens of this
country can not be enforced against him. This marks a triumph of the
principle of the jus sanguinis over the jus soli.
The facts of the case are as follows:
A minor, the son of Spanish parents, Hector Garcia by name, was summoned
to do military service according to the Chilean laws. Garcia refused to
enroll himself as a Chilean soldier, stating that although he was born
in Chile, he was a Spanish subject, and as such the duty of military
service in Chile could not be demanded of him. Whereupon he was brought
before a lower court and sentenced to thirty days’ confinement in
jail.
Appeal was then taken from this decision to the higher court.
It appears that the appellant had been registered in the Spanish legation
by his parents and that this entry had been duly transmitted and
reported to the Spanish foreign office. According to the Spanish
constitution the children of Spanish parents are Spanish citizens,
whether the birthplace of the offspring be Spain or a foreign country.
On the other hand, all persons born in Chile are declared by Article VI
of the Chilean constitution citizens of that country. In this conflict
of the fundamental laws of the two countries the court adopted the
opinion of the great commentator of the Chilean constitution, Senor
Jorje Huneeus, according to whom, “in spite of the imperative terms in
which the clause heading this article (clause 1, article 5) is written,
it does not impose the character of Chilean citizenship, [Page 125] but only offers it to those who,
possessing the qualifications enumerated in the different provisions
included in this article, are freely willing to accept it, when, at the
same time, the citizenship of another country is offered to them by the
legislation in force in the latter.” The parents of Hector Garcia made
use of the right of election possessed by their son by registering him
in the Spanish legation.
The clerk of the court states that the Government will not carry the case
further, but accepts the decision as it stands.
I have, etc.,
[Inclosure.]
Conflict of laws on the subject of
citizenship—Decision of court of appeals of
Santiago.
It is decided:
- First. That the documents show the following facts:
- (a)
- That after the sentence which is being served and
which is attached to folio 6 had been passed,
according to which Mr. N. N. is condemned to thirty
days’ imprisonment and other penalties therein
included, for not having inscribed his name in the
military registers, an appeal was taken to secure a
reconsideration and a change of judgment;
- (b)
- That as basis of said prayer the document of folio
1 is submitted, in which the minister of Spain
certifies “that in the register of Spanish subjects
which exists in that legation there is an entry
noting the birth of said N. N.,” inscription which
serves the purpose of establishing his nationality
according to what is there stated; and
- (c)
- That in the certificate of folio 19 submitted to
the court of second instance, the said minister adds
that “in folios 1 to 8 it appears that the fact of
the birth of said N. N. had been registered by
virtue of the application of his father, and from
this transcription it appears that a copy has been
sent to the ministry of foreign relations of
Spain;”
- Second. That consequently the question reduces itself in
last result to a determination of the nationality which is
possessed by the appellant; or, in other words, if he should
be held to be Chilean from the fact of his birth in Chile,
or Spanish as son of Spanish parents, a minor and duly
inscribed in the respective legation;
- Third. That although the fundamental statute in article 6,
No. 1, declares that “persons born in the territory of Chile
are Chileans,” such disposition, by its nature, must be
interpreted in conformity to the rules of international law,
inasmuch as conflicts may occur between it and that which is
established on the subject in the constitutions, as occurs
at present, in that the Spanish constitution recognizes as
Spaniards, among others, “the sons of Spanish father or
mother, although they be born outside of Spain;”
- Fourth. That it is a principle uniformly admitted by the
text writers of that science that the unemancipated son
follows the nationality of the father and the case under
consideration, this principle is confirmed by the
inscription of the N. N., made on the request of his parents
in the register of the Spanish legation;
- Fifth. That it is gathered from what has been expounded
that the constitutional provision of article 6 should not be
considered as being absolute in character, but limited in
the sense that it offers Chilean nationality “to those that,
possessing the qualifications there enumerated, are freely
willing to accept it, where, at the same time, they are
offered the nationality of another country by the
legislation in force in the latter;” and
- Sixth. That, proven the nationality of N. N. as a Spanish
subject, neither the provisions of article 1 of the law No.
1467 of the 10th of September, 1901, nor the penalties
determined by the same to sanction its proper execution
apply to his case.
