jurisdiction of the commission under the terms of the protocol is beyond question." a In Selwyn's case, before the British-Venezuelan commission, under the protocol between Great Britain and Venezuela of Feb. 13, 1903, objection was made by Venezuela to the jurisdiction of the commission on the grounds (1) that a suit by claimant against the Venezuelan government, based on the same cause of action, was then actually pending in the local courts; (2) that the contract between the government and claimant provided that "any doubts and controversies," etc., should be "settled by the tribunals of the Republic " and should never in any case be the subject of an international claim, and (3) that contract claims were not submitted to the commission. As to the first objection, Plumley, umpire, held that the jurisdiction of the commission under the protocol was not affected by the pendof the suit in the local courts. The second and third objections he disposed of together by finding that the fundamental ground of the claim was "that the claimant was deprived of valuable rights, of moneys, properties, property, and rights of property by an act of the government which he was powerless to prevent and for which he claims reimbursement." How much of the claim came under this head he did not deem it necessary to consider, since, as the matter fundamentally was not one of contract, the second and third objections to jurisdiction were inapplicable." ency In Martini's case, before the Italian-Venezuelan commission, under the protocol between Italy and Venezuela of Feb. 13, 1903, the agent of Venezuela interposed a preliminary objection to the jurisdiction, on the ground that the contract in the case contained the following clause: "ART. 16. The doubts or controversies which may arise as to the interpretation and execution of the present contract shall be resolved by the tribunals of the republic, conformably to the laws, and shall in no case afford ground for international claims." Ralston, umpire, held that, even if the claim before him could be considered as embraced within the terms "doubts or controversies which may arise as to the interpretation and execution of the present contract," the objection might be disposed of by a single consideration, which he stated as follows: "Italy and Venezuela, by their respective governments, have agreed to submit to the determination of this mixed commission the claims. of Italian citizens against Venezuela. The right of a sovereign power to enter into an agreement of this kind is entirely superior to that of the subject to contract it away. It was, in the judgment a Venezuelan Arbitrations of 1903, 178, 182. of the umpire, entirely beyond the power of an Italian subject to extinguish the superior right of his nation, and it is not to be presumed that Venezuela understood that he had done so. But aside from this, Venezuela and Italy have agreed that there shall be substituted for national forums, which, with or without contract between the parties, may have had jurisdiction over the subject-matter, an international forum, to whose determination they fully agree to bow. To say now that this claim must be rejected for lack of jurisdiction in the mixed commission would be equivalent to claiming that not all Italian claims were referred to it, but only such Italian claims as have not been contracted about previously, and in this manner and to this extent only the protocol could be maintained. The umpire can not accept an interpretation that by indirection would change the plain language of the protocol under which he acts and cause him to reject claims legally well founded." a Mexican matricu lation. (2) BY LEGISLATION. § 919. "This Department has no doubt that the object and the effect of the ninth article of the treaty of 1831 was to exempt the citizens of one party from compulsory service. in the military or naval service of the other. Supposing the fact of citizenship in any particular case to be acknowledged, the exemption must be insisted upon, including also any tax which may be imposed in lieu of that service. The question then occurs what proof of citizenship is either government warranted in requiring. The treaty being silent on this point, it is left for regulation by the municipal laws of the parties, which must be acquiesced in unless their purpose and effect should be to thwart a plain stipulation of the treaty. The Mexican law requiring the matriculation or registration of foreigners can scarcely be said to be of this character. Citizenship is a fact which, like others, may be proved by oral or documentary testimony. If the latter should be offered, the highest of this character would be a passport from the Mexican foreign office or from this Department. A passport is virtually a mere certificate of citizenship. It implies that the Department from which it may emanate has itself considered the evidence of the fact which it proposes to establish, and has decided accordingly. A passport may also issue from the legation, and may be presumed to be granted upon similar considerations. "Upon the whole the Department is inclined to the opinion that the requirement of matriculation, as it is called by the Mexican govern • Venezuelan Arbitrations of 1903, 840-841. ment, is not illegal, nor, under the circumstances, unduly oppressive in form, and can not properly be protested against generally or in any particular case, unless unusual or unattainable proof of citizenship should be required." Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 43, Oct. 31, 1873, MS. Inst. Mexico, XIX. 37. See, supra, § 483. "Your despatch No. 301 of the 9th ultimo has been received. It relates to the claim of the Batopilas Mining Company. This, it appears, has been rejected, but for reasons which can not be regarded as satisfactory. Conceding, as is alleged in the note of Mr. Lafragua to you of the 31st of May last, that Mr. Robinson, the agent of the company, was not registered in the Mexican foreign office as a citizen of the United States, and that the company itself was not registered, as required, the Mexican government must not suppose that we can acquiesce in the injuries inflicted in this case merely on account of the omissions adverted to. Indeed, such an acquiesence would imply an acknowledgment on our part that by municipal laws the Mexican government can deprive citizens of the United States of their rights under treaties and international law, a pretension which can not be allowed to any government. It must not from this, however, be inferred that this government would counsel or justify, in the abstract, any disregard of the laws of Mexico by a citizen of the United States. On the contrary, we would prefer that the requirements of those laws should be complied with. It is only when the effect of their administration becomes tantamount to the infliction of the exorbitant penalty of denationalizing a citizen or an association that we deem ourselves warranted in protesting against such a course. That government may have sufficient reasons for enacting the laws referred to, and if a disregard of them, either accidental or willful, were to be visited with a punishment proportionate to the offence no one could reasonably complain." Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 241, July 15, 1875, MS. Inst. Mexico, XIX. 210. See, to the same effect, Mr. Fish, Sec. of State, to Mr. Russell, min. to Venezuela, No. 14, Sept. 15, 1874, MS. Inst. Venezuela, II. 262, as to laws attempting to exclude the resort by foreigners to the diplomatic intervention of their governments. The instructions given by Mr. Fish with regard to matriculation were repeated by his successor, Mr. Evarts, with some explanation. Mr. Evarts said that the view that the requirement of matriculation was not at variance with treaties or public law might be concurred in so far as it applied to American citizens domiciled in Mexico, but that its application to travelers or temporary sojourners seemed to be unreasonable and should be protested against. Nor could the pretension of the Mexican government to ignore the passport of the Department of State and to require in the case of naturalized citizens of the United States an inspection of the certificate of naturalization be acquiesced in. The Mexican government was to be apprised that it would be held accountable for any injury to a citizen of the United States which might be occasioned by a refusal to treat the passport of the Department as sufficient proof of nationality. The assumption of the Mexican government of a right to inspect and decide upon the validity of certificates of naturalization, issued by the various courts in the United States, instead of receiving the proof afforded by a passport of the Department of State must be regarded as wanting in proper courtesy to a friendly power. Besides, there were many citizens of the United States who were not naturalized in the ordinary way, such as the inhabitants of annexed territories. Such citizens were not native born, nor would they have any certificate of naturalization, and the only guarantee of their American nationality would be their passport. Mr. Evarts, Sec. of State, to Mr. Foster, min. to Mexico, No. 642, June 16, 1879, MS. Inst. Mexico, XIX. 593. "You will please say to the minister for foreign affairs that if the intervention of the United States in favor of Americans imprisoned is refused only because they are not matriculated, that the President expects such citizens to be now allowed to matriculate. And you are authorized to advance the requisite funds. Please send the names of prisoners and why imprisoned." Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, min. to Mexico, tel., July 24, 1882, Mr. Frelinghuysen addressed to the American minister at Mexico a long instruction concerning the refusal to accept the interposition of the legation in regard to the murder of Mr. and Mrs. Thomas Gartrell, near the city of Durango, because they were not matriculated as American citizens. Mr. Frelinghuysen reviewed the subject at length. He was not, he said, disposed to question the convenience of matriculation as evidencing the right of foreigners resident in Mexico to certain civil and domiciliary rights prescribed under the Mexican law, but he questioned the claim of Mexico “to debar from the protection of their own Government citizens of the United States who may be temporarily in Mexico and who have not matriculated." He maintained that, as the reciprocal rights of allegiance and protection were not created by the laws of any foreign country, they could not be denied by the municipal law of a foreign State. 66 Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, min. to Mexico, No. 298, In the subsequent case of Howard C. Walker, an American citizen, I have to acknowledge the receipt of your No. 962, of the 12th ultimo, in reply to the inquiries of this Department respecting the matriculation laws of Mexico. The Department has read with interest your careful review of the subject. It appears that matriculation of foreigners consists in registering their names and nationality in the foreign office of Mexico. "The Mexican government contends that the national character of the foreigner is proved by this matriculation, which entitles him to special privileges and obligations, called the rights of foreigners. These are (1) the right to invoke the treaties and conventions existing between his country and Mexico; (2) the right to seek the protection of his own government. "They further contend that the want of a certificate of matriculation will be considered sufficient to deny to this government the right of diplomatic intervention in any case. "Against this contention this government protests as an interference in its relations to its citizens. The government of the United States recognizes the right of Mexico to prescribe the reasonable conditions upon which foreigners may reside within her territory, and the duty of American citizens there to obey the municipal laws; but those laws can not disturb or affect the relationship existing at all times between this government and one of its citizens. The duty is always incumbent upon a government to exercise a just and proper guardianship over its citizens, whether at home or abroad. A municipal act of another state can not abridge this duty, nor is such an act countenanced by the law or usage of nations. No country is exempted from the necessity of examining into the correctness of its own acts. A sovereign who departs from the principles of public law can not find excuse there for in his own municipal code. This government, being firmly convinced that the position of the Mexican government is untenable, can not assent to it. "You will so inform the minister for foreign affairs in such form as you may deem proper." |