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functionary of Salvador is permitted to recognize a foreigner's nationality (Chapter III. article 26).
“ Upon the score of mere convenience it is evident how inexpedient as a matter of policy, in the present age of enlarged and liberal intercourse and of extensive commercial transactions, are municipal regulations which tend to impede and restrict the movements and business operations of foreigners.
“ But the law in question, as understood by this Department, goes beyond considerations of convenience, and raises important questions of international right. By article 28, Chapter III., it is provided that matriculation concedes privileges and imposes special obligations which are called by the laws of the Republic' the rights of foreigners.' These rights of foreigners, as stated in article 29 of the same chapter, are as follows:
' (1) To appeal to the treaties and conventions existing between Salvador and their respective governments.
" (2) To have recourse to the protection of their sovereign through the medium of diplomatic representation.
(3) The benefit of reciprocity. “ Unless a foreigner possesses a certificate of matriculation, no authority or public functionary of Salvador, as has been seen, is permitted to concede to him any of these rights; and it is further provided in article 27 of the chapter in question, 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 assertion by a foreigner in Salvador of the consequent rights and privileges of his national character, whether they are guaranteed by treaty or secured by the general rules of international law, conditional upon his contemporaneous possession of a paper prescribed by the municipal law of the country 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 proofs of citizenship as they may deem sufficient, his right to claim the protection of his government would be lost. Conversely the right of his government to interpose in his behalf would also 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.
"Nothing would seem to be required beyond the mere statement of these propositions, fully sustained as they appear to be by the context of the law in question, to confirm the conviction that its enforcement would give rise to continual and probably grave controversies. Such has been the result of the occasional attempts elsewhere than Salvador to enforce similar regulations, and such would seem to be the necessary result of the attempt of particular governments to enforce laws which operate as a restriction upon the exercise and performance both by states and by citizens of their relative rights and duties, according to the generally accepted rules of international intercourse. Such intercourse should always be characterized by the utmost confidence in the good faith of nations, and by the careful abstinence of each from the adoption of measures which, by operating as a special restriction upon the action of other governments in matters in which they have an important if not the chief concern, seem to imply distrust of their intentions. It is proper to observe that the Government of Mexico, guided by the experience of an ample trial of her law of matriculation, modified it in June last by the repeal of those provisions which · made the matriculation of foreigners compulsory and a condition of the exercise of their right of appeal to their government.
“ It may be said that the question of citizenship is one which peculiarly concerns the government whose protection is claimed and in the decision of which that government has a paramount sovereign right. This results not only from the relation of a government to its citizens, but from the fact that international law recognizes the right of each state to prescribe the conditions of citizenship therein and regulate for itself the process whereby foreigners may, if they so desire, expatriate themselves and become naturalized. In the United States this process is defined by a statute, the administration of which is committed to the courts, who issue to the naturalized citizen certain evidence of his compliance with the law. The efficiency of this law, the basal principle of which is the voluntary action of the alien, is fully recognized by all states that concede the right of expatriation, and among these is Salvador.
“The principle and validity of our naturalization law being thus admitted, it would seem that the mere question of its administration and of the proper evidence of its administration was one for the determination of this Government. But by the matriculation law of Salvador that Government is made the first and the final judge of the sufficiency of the evidence of American citizenship, even in the case of a naturalized citizen of the United States not of Salvadorian origin.
“ The effect of the Salvadorian statute 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 an abrogation of its sovereign duty towards its citizens in foreign lands to which this Government has never given assent."
Mr. Bayard, Sec. of State, to Mr. Hall, min. to Cent. Am., Nov. 29, 1886,
For. Rel. 1887, 78. For the text of the law, see id. 09.
of foreign affairs, a note in the sense of the foregoing instructions.
(For. Rel. 1887, 111.)
“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 igent accredited in the Republic, in which it is set forth that the party interested is a native of the country represented by such agent, er 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 domicils 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.
“ 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."
Señor Delgado, Salvadorian min. of for. aff., to Mr. Hall, Am. min.,
March 28, 1887, For. Rel. 1887, 113, 114.
“In the meantime I learn that the Government has taken no steps to
“ This Government has been constrained to enter earnest protest against a recent decree of the governor-general of Cuba, ordering the registration of all aliens in the island, and pronouncing all those not registered within a certain time as debarred from appealing to the provisions of existing law. The treaty rights of American citizens obviously depend on their actual allegiance to their own Government, not upon any arbitrary inscription as aliens by the state wherein they may be sojourning; and while this Government is well disposed to admit the convenience of the proposed registry as an additional evidence of the right of such citizens in Cuba to the protection of the authorities, and has signified its willingness to facilitate their registration, it can never consent that the omission of a merely local formality can operate to outlaw any persons entitled to its protection as citizens, or to abrogate the right to the orderly recourses of Spanish law solemnly guaranteed to them by treaty."
Report of Mr. Olney, Sec. of State, to the President, Dec. 7, 1896, For.
Rel. 1896, lxxxvii.
The general and uniform practice of our consuls to give certificates of citizenship, or protection, to our seamen, may, I think, be very well considered as sanctioned by our Government, by implication, if it has not been done explicitly. The practice is certainly necessary, and is strikingly proper in cases where the consul's interference has procured the release of our impressed seamen; for without such certificates they would be instantly exposed to a repetition evil. Besides, multitudes of our seamen have gone abroad without protections, or they have lost them; but still they were not to be abandoned ; and who in foreign countries have it in their power so well to ascertain their citizenship as our consuls? The measure was natural and necessary; and hence was practiced by the consuls of other nations as well as our own."
Mr. Pickering, Sec. of State, to Mr. King, min. to England, Oct. 26, 1796,
MS. Inst. U. States Ministers, III. 280.
“The circumstance that the vessel is American is evidence that the seamen on board are such,” and “ in every regularly documented merchant vessel the crew will find their protection in the flag that covers them.”
Consular Regulations of the United States of 1888, arts. 171, 172, cited in
Mr. Lee, consul-general at Havana, to Mr. Rockhill, Assist. Sec. of State, Oct. 21, 1896, For. Rel. 1896, 740, in relation to one of the prisoners of the American schooner Competitor. See supra, 317.
Certain claims were made against the Mexican Government, growing out of the seizure of an American vessel and the imprisonment of the persons on board. The claims were presented by the Government of the United States, and were afterwards referred to an international commission. In one of the claims, made in behalf of a member of the crew, proof of whose American citizenship was lacking, the umpire held that the claim should be allowed, because (1) service on an American vessel was some proof of American citizenship, and (2) " seamen serving in the naval or mercantile marine under a flag not their own are entitled, for the duration of that service, to the protection of the flag under which they serve."
Sir Edward Thornton, umpire, United States and Mexican Claims Com
mission, convention of July 4, 1868, Moore, Int. Arbitrations, III. 2536-2537.