No. 100.
Mr. Logan
to Mr. Evarts.
Guatemala City, December 6, 1879. (Received January 7, 1880.)
Sir: As you are aware, President Barrios, of Guatemala, after his accession to power, and the failure to agree upon a constitution in place of the one which had been annulled, was regularly invested with the title and faculties of dictator. The time having arrived when the latter has concluded to give the people a constitutional government, an assembly created for the purpose has prepared and is now considering the draft of a constitution.
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When finished and officially proclaimed, I shall take pleasure in sending you a copy. At present, I desire to offer for your consideration three articles which have especially claimed my own attention. I append these articles under the head of No. 1, and their translation under that of No. 2. For the purpose of convenient consideration, however, I shall include them also in the body of this dispatch.
Article 5 of the proposed constitution is as follows:
Are native citizens—
- 1.
- All persons born or that may be born in the limits of the republic, whatever may be the nationality of the father, with the exception of the children of diplomatic agents.
- 2.
- The children of Guatemalteco father, or illegitimate children of Guatemalteca mother, born in foreign countries, from the moment that they reside in the republic; and even without this condition when, in conformity to the laws of the country where born, they have the right to elect their nationality.
The first of these paragraphs conflicts directly with the laws of the United States, which declare the children of American citizens to be Americans wherever born; and indirectly with the laws of other countries. Hoping to accomplish a modification of this, and subsequent articles, I convened a meeting of the representatives in Central America of France, Germany, Great Britain, Italy, and Spain to consider a common ground upon which we could all stand in recommending a change. Your own representative presented the following amendment, which, being considered to cover the requirements of all the above-named countries, was unanimously adopted.
Amend article 5 by adding, at the end of the sentence, the following words: “And except the children of foreign parents, the laws of whose country declare the children to be citizens thereof; and except the children of parents, the laws of whose country peimit an option of nationality upon obtaining their majority; in which latter case the said children born in Guatemala shall be considered Guatemalans until they elect, at the age of 18 years, a different nationality.”
At the age of eighteen years enforced military service by every Guatemalteco is provided by law, and hence my desire to harmonize the laws of Guatemala in the interest of peace.
Article 14 of the constitution reads as follows:
Neither Guatemaltecos nor foreigners shall be able in any case to make a claim for indemnity against the government by reason of damages and losses to their persons or goods through the acts of factions (facciones).
The word “faction,” in the Castilian, means an armed rebellion against the authority of a government; but it also has a lesser scope of signification, and fairly embraces any turbulent and riotous body, however small the number. Some of my colleagues could not indorse the [Page 111] principle adopted by our own government, which disavows liability for losses sustained in a rebellion of such magnitude as to be beyond the ready power of the government to suppress; but they all stood with me on the following form of amendment:
Amend article 14 so it will read as follows: “No Guatemalteco shall he entitled to make a claim against the government for any indemnity whatever for damages and injuries which he may sustain in his property and person caused by “facciones,” nor shall any foreigner he considered entitled to make any such claim, except under the general laws of nations.”
Article 23 reads as follows:
The inhabitants of the republic shall have alike the same free access to the tribunals of the country, in order to bring their suits in the forms prescribed by law.
Foreigners shall not have the right to resort to diplomatic assistance, except in cases of denial of justice, and a sentence which may not be favorable to the claimant shall not be considered a denial of justice.
I objected to the latter clause of this article for three reasons: 1, because there are many cases of dispute which do not involve a resort to the tribunals of justice, such as personal outrages by a government itself upon a foreigner, as well as questions of contract with a government, which latter cannot be taken into court, &c.; 2, because there is no end to the possibilities of construction which might be given the article, in cases involving a foreigner and his legal rights; 3, because the whole of the last portion of the provision is in conflict with the privileges guaranteed under the laws of nations. My colleagues all agreed in the recommendation to strike out the last clause relating to the restrictions upon foreigners.
Thus agreeing, I was requested to see President Barrios, who is all-directing in the matter, upon behalf of the diplomatic corps. After disclaiming, in the most distinct and courteous terms, any disposition to interfere with or dictate in the local affairs of Guatemala, I told the President that our action was directed toward avoiding possible complications in the future. I then proceeded to explain the changes in the articles above quoted which we believed it expedient to make. As to the fifth article, I gave the President a copy of our own law upon the subject, and proceeded to illustrate the possible complications which might arise, by instancing the case of a boy, born of American parents in Guatemala, who next year will reach the age of eighteen. “Under your laws,” I said, “that boy will be impressed into your army for service; he will appeal to his country for protection; what then must happen? Why, that one or the other government must, sooner or later, recede from its own laws. If ours were an isolated case, and your own provisions usual and recognized, it would be different; but here come many of the principal powers of the world, through their representatives, to bear testimony to the inexpediency of the proposed law.” The President told me that the law was so framed in order to prevent their own citizens from adopting a different nationality, as foreigners enjoy so many immunities in a country of forced loans, compulsory military service, &c., which the natives do not.
As to the other articles, I told the President frankly that it would be impossible to induce immigration and capital to seek a country whose laws were so doubtful in construction as to afford a foreigner few or no fixed rights.
The President was much impressed with what I said, and asked me to reduce the amendments or changes to writing, in order that he might send them to the assembly and recommend their passage. This I did. But, much to the surprise of myself and colleagues, the original articles [Page 112] were severally adopted by the assembly, without debate or a dissenting voice.
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When the constitution has been adopted as a whole, and officially promulgated, if these obnoxious articles remain as they now are I shall officially notify the government that the United States, without regard to the laws of Guatemala, will in every case claim the rights for its citizens guaranteed by the laws of nations. In this notification I shall be joined by all the foreign representatives above named.
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I have, &c.,
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It is a singular thing that the fifth article relating to natural citizenship, should have been copied from the Spanish constitution of 1812, by nearly all of the Spanish-American republics, without the subsequent modification which Spain was compelled to adopt. While the writer was representing our government in Chili, this same article was incorporated into the new constitution of that country, though he used his strongest efforts to prevent it. The history of the article is so well given in a French work issued during the present year, that I must ask your permission to make a few extracts therefrom; and in order that there may be no loss through translation, I give them in the original text. The work is upon the “Droit des Gens,” and is entitled “La Nationalité, au point de vue des rapports internationaux, par George Cogordan, docteur en droit attaché au ministère des affaires Mrangères, Paris, 1879.”
(Page 50.) La constitution du 30 Juin, 1876, qui régit aujourd’hui l’Espagne, porte dans son article ler la disposition suivante: Sont Espaguols: 1° ceux qui sont nés sur le territoire espagnol.
(Page 51.) L’article ler 1° de la constitution de 1876 a êté reproduit de toutes les constitutions qui se sont succédées en Espagne depuis celle de 1812, où il-figure pour la première fois. Insérée dans le projet de constitution sounds aux cortés de 1837, par le gouvernement de la Reine Régente, cette disposition attira l’attention du gouvernement Français qui avait eu l’occasion d’en reconnâitre plusieurs fois les inconvénients. Sur les représentations de l’ambassadeur du roi français, le ministère Calatrava se détermina, tout en gardant l’article, à faire aux córtès une déclaration de nature à en limiter la portée. Dans la séance du 11 Mai, 1837, M. Olózaga président de la commission chargée d’élaborer le projet, exposa solennellement l’interprétation à donner au texte constitutional:
“Quelques députés ont cru,” a-t-il dit, “et il paraît qu’on a cru aussi en dehors de cette enceinte, que concéder la qualité d’ espagnol aux étrangers nés fortuitement en Espagne était la même chose que leur imposer l’obligation d’être espagnols. Ceux qui parlent ainsi n’ont pas compris le laconisme et la précision avec lesquels il convient de rédiger des lois fondamentales comme celle-ci. On a pensé qu’il fallait ne placer dans la constitution que les principes essentiels du droit public, et laisser aux lois particulières le soin de les expliquer.” Et M. Olózaga continuait en déclarant que l’in-dividu né en Espagne de parents étrangers pourrait seulement choisir entre la nationalité de sa famille et celle que lui confére la constitution espagnole, qu’en tout cas, jamais cette dernière nationalité ne lui serait imposée.
(Page 52.) C’est done à vrai dire, dans cette singulière interprétation de la constitution, une simple oifre de nationalité espagnole qui est fait aux fils d’étranger. * * * Deux lois postérieures, venant à l’appui de la déclaration de 1837, ont établi dans la péninsule un régime à peu pres identique à celui de l’article 9 du code civil. Le texte constitutional n’a done plus qu’une signification tout à fait vague, et veut dire seulement que le droit d’être espagnol appartient rirtuellement à tout natif du territoire péninsulaire. Ces deux lois sont: 1° le decret du 17 Novembre, 1852, sur les étrangers, dont l’article ler 3° déclare étrangers les individus nés en Espagne de parents étrangers on meme de père étranger et de mère espagnole, s’ils n’ont pas reclamé la qual té de sujet espagcol, &c.
From these extracts it appears:
- First. That the law declaring all children born within the limits of a state to be subjects or citizens thereof first appeared in the constitution of Spain in 1812, and that it has been reproduced in all the constitutions of that country in succeeding years.
- Second. That being reproduced in the draft of a constitution submitted to the Cortes in 1837, the provision attracted the attention of the French Government, which had felt its inconvenience upon several occasions. That upon the representations of the French ambassador, the Spanish Calatrava ministry determined to make a declaration to the Córtes limiting its scope, and that M. Olózaga, president of the commission charged with the draft, made an interpretation of the article at the session on the 11th of May, 1837.
- Third. That the interpretation denies the position taken by many deputies, as well as outside persons, that to concede the quality of a Spanish subject to strangers born by accident in Spain, was the same thing as to impose upon them the obligation of being Spaniards; that it was only necessary to state essential principles in the constitution, leaving to particular laws the methods of construing them; that the individual born in Spain of foreign parents was free to choose between the nationality of his family and that which the Spanish Constitution conferred upon him, and that in no case would the last nationality be imposed upon him.
- Fourth. That-this singular interpretation of the constitution is a simple offer of the Spanish nationality to the children of foreigners.
- Fifth. That two later laws support the declaration of 1837, and have established in the Peninsula a usage nearly identical with that of the 9th article of the civil code. The constitutional text has a signification entirely vague, and simply gives the apparent right to be a Spaniard virtually to every native of the Peninsula. These two laws are: First, the decree of November 17th, 1852, concerning foreigners, of which the first article, third section, declares to be foreigners individuals born in Spain of foreign parents, or even of foreign father and Spanish mother, if they have not claimed the quality of Spanish subject, etc., etc.
Thus we see that while Spain, as the originator of the article, has receded from it, before a more intelligent public sentiment, her American offshoots still hover around the defunct body of a code which, even half a century since, was tottering with age and imbecility.
I have, &c.,